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AN  ESSAY 


THE    PRINCIPLES   OF 


CIRCUMSTANTIAL   EVIDENCE. 


glUtisitvati^a  h\j  §\mivou^  €im^. 


BY    THE    LATE 


WILLIAM  WILLS,   Esq. 


EDITED   BV   HIS    SON, 

ALFRED   WILLS,   Esq., 

BARRISTER-AT-LAW. 


Nulla  clenique  est  causa,  in  qua  id,  quod  in  judieiuui  venit,  ex  renruiii  perfiiui 
non  generum  ipsorum  universa  disputatione  quajratur. —  Cic.  Be  Orutmi. 


SIXTH  AMEKICAX, 

FROM  THE  FOURTH  LONDON  EDITION, 


PHILADELPHIA : 
T.    &   J.   W.   JOHNSON   &    CO. 

No.   535  CHESTNUT   STREET. 

1881. 


T 


PREFACE 

TO   THE   FOURTH   EDITION. 

BY    THE    EDITOR. 


The  earlier  sheets  of  this  volume  were  in  the  press 
more  than  two  years  ago,  and  the  remainder  was  very 
nearly  ready  for  publication  w^hen  the  Author  was  seized 
with  an  illness  which  proved  speedily  fatal.  The  subse- 
quent delay  has  arisen  from  unavoidable  circumstances, 
with  which  it  is  unnecessary  to  trouble  the  reader.  The 
work,  however,  was  so  far  advanced,  that  I  have  had 
little  to  do  beyond  correcting  the  press  and  occasionally 
verifying  a  quotation  or  a  reference  ;  and  I  append  my 
name  only  because  I  think  my  father  would  have 
wished  that  some  one  should  appear  to  be  responsible 
for  even  these  mechani,cal  operations. 

I  had  intended  to  add  to  the  "  Illustrations  of  the 
force  of  circumstantial  evidence  "  an  instance  of  conflict 
between  direct  and  circumstantial  evidence,  more  re- 
markable than  any  of  those  cited  in  this  volume,  pre- 
sented by  a  case  of  disputed  codicils  to  a  will,  twice 
tried  at  Derby ;  but  as  I  have  lately  learned  that  it  is 
not  finally  disposed  of,  I  must  leave  it  to  be  noticed 
hereafter,  should  a  further  edition  be  called  for. 


/   -?  I  :nn  U. 


IV  PREFACE    TO   THE    FOURTH    EDITION. 

During  the  ten  years  which  had  elapsed  between  the 
publication  of  the  last  edition  and  the  death  of  the 
Author,  he  had  been  constantly  on  the  watch  for  cases 
illustrative  of  the  subject  of  this  Essay,  and  this  edition 
will  be  found  rich  in  such  additional  materials.  The 
section  of  Chapter  III  on  Scientific  Testimony  is  new ; 
many  parts  of  the  book  have  been  rewritten,  and  it  will 
be  found,  I  trust  and  believe,  not  less  worthy  than  be- 
fore of  the  high  reputation  it  has  gained  as  the  offspring 
of  an  accurate,  clear,  and  philosophical  mind. 

A.  W. 

Inner  Temple,  November,  1862. 


PREFACE 

TO   THE   THIRD   EDITION. 


The  favorable  reception  wliich  this  Essay  has  met  with  has 
induced  me  again  to  commit  it  to  the  press. 

I  have  incorporated  with  the  text  of  the  present  edition  the 
more  recent  cases  of  circumstantial  evidence,  in  some  of  which 
the  leading  doctrines  applicable  to  that  department  of  moral 
and  legal  science  have  been  declared  with  a  clearness,  precision 
and  completeness  which  are  not  to  be  found  in  connection  with 
the  earlier  cases.  Those  parts  of  the  Work  which  relate  to  the 
subject  of  presumptions  have  been  considerably  enlarged,  and 
other  portions  of  it  have  been  wholly  rewritten. 

I  avail  myself  of  this  opportunity  of  recording  my  obliga- 
tions to  that  profound  jurist  and  upright  magistrate,  the  late 
Chancellor  Kent,  to  whose  estimate  of  this  Essay  I  have  been 
indebted  for  its  republication  in  the  United  States  of  America. 

Nor  can  I  quit  my  subject  without  expressing  my  admiration 
of  the  simplicity  and  harmony  of  our  English  system  and  rules 
of  evidence,  and  of  their  incomparable  superiority  to  those  of 
all  other  nations  which  have  adopted  or  modified  the  doctrines 
and  practice  of  the  Civil  Law,  so  unworthy  of  the  general 
excellence  of  that  imperishable  monument  of  human  wisdom ; 
a  superiority  for  which  we  are  mainly  indebted  to  the  un- 
compromising resistance  made  by  our  forefathers  to  every 
attempt  to  substitute  the  intangible  subtleties  and  imprac- 
ticable formulge  of  the  Roman  jurisprudence  for  the  plain  and 
intelligible  principles  of  our  own  Common  Law. 

W.  \V. 

Edgbaston,  February,  1850. 


PREFACE 

TO  THE  FIRST  EDITION. 


The  most  important  doctrines  of  Circumstantial  Evidence 
have  been  so  ably  treated  in  the  learned  works  of  Mr.  Bentham 
and  Mr.  Starkie,  that  an  apology  may  be  thought  necessar}- 
for  this  publication.  It  will,  however,  be  perceived,  that  the 
design  of  the  following  Essay  is  diiferent  in  some  important 
particulars  from  that  of  either  of  the  above-mentioned  authors  ; 
and  that  an  attempt  has  been  made  to  illustrate  the  subject  by 
the  application  of  many  instructive  cases,  some  of  which  have 
been  compiled  from  original  documents,  and  others  from  publi- 
cations not  easily  accessible. 

It  has  not  always  been  practicable  to  support  the  statement 
of  cases  by  reference  to  books  of  recognized  authority,  or  of 
an  equal  degree  of  credit ;  but  discrimination  has  uniformly 
been  exercised  in  the  adoption  of  such  statements;  and  they 
have  generally  been  verified  by  comparison  with  contempora- 
neous and  independent  accounts.  A  like  discretion  has  been 
exercised  in  the  rejection  of  some  generally  received  cases  of 
circumstantial  evidence,  the  authenticity  of  which  does  not  ap- 
pear to  be  sufficiently  established. 

It  is  to  be  regretted  that,  with  the  exception  of  the  State 
Trials,  there  is  no  authoritative  collection  of  English  cases  of 
controverted  fact,  for  which,  nevertheless,  there  are  extant 
abundant  materials.  Isolated  and  anomalous  as  such  cases  may 
appear  to  be,  they,  like  every  other  part  of  the  great  system 
of  jurisprudence,  are  reducible  to  consistent  and  immutable 
principles  of  reason  and  natural  justice.  There  has  existed 
hitherto  little  inducement  to  any  such  compilation,  since  (how- 


Till  PREFACE    TO    THE    FIRST   EDITION. 

ever  pertinent  and  instructive  such  cases  might  be)  by  an 
unreasonable  rule  of  legal  procedure  they  were  shut  out  from 
practical  application.  It  is  probable  that,  as  the  consequence 
of  recent  legislative  changes,  cases  of  circumstantial  evidence 
will  hereafter  be  treated  with  an  amplitude  of  argument  and 
illustration,  both  as  to  fact  and  principle,  which  will  give  them 
an  increased  value,  and  offer  inducements  to  the  satisfactory 
record  of  such  cases  for  the  purposes  both  of  practical  use  and 
liberal  curiosity. 

In  the  course  of  my  experience  and  reading,  my  attention 
has  frequently  been  drawn  to  the  consideration  of  the  leading 
principles  of  circumstantial  evidence.  The  matter  which  pre- 
sented itself  upon  this  favorite  subject  of  study,  and  the 
thoughts  which  it  suggested,  it  was  my  practice  to  preserve ; 
and  thus,  without  any  view  to  publication,  materials  gradually 
and  insensibly  accumulated,  which  at  length  I  have  endeavored 
to  methodize  and  arrange  in  the  present  volume.  Notwith- 
standing the  originality  of  some  of  those  materials,  and  the 
novelty  of  their  arrangement  and  combination,  it  is  probable 
that  few  of  the  generalizations  and  reflections  advanced  in  this 
Essay  can  be  considered  as  strictly  original.  The  labor  of 
composing  these  pages  has  nevertheless  been  an  agreeable  and 
useful  employment,  in  the  brief  intervals  of  leisure  from  other 
pursuits ;  and  though  I  am  not  insensible  to  their  deficiencies, 
I  am  also  not  without  the  hope  that  they  may  be  in  some 
degree  serviceable  to  others.  At  any  rate,  this  Essay  wall  be 
considerately  received  by  those  who  rightly  estimate  the  import- 
ance of  the  subject,  and  the  difiiculties  of  such  an  attempt. 

W.  W. 

Edgbaston,  near  Birjiingham, 
February,  1 838. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

EVIDENCE    IN    GENERAL. 


PAOK 

Sect.  1 . — The  Nature  of  Evidence 1 

2. — The  vai'ious  kinds  of  Evidence  ..,,..  2 
3. — Nature  of  the  Assurance  produced  by  different  kinds  of 

Evidence  .........  .5 


CHAPTER  II. 

CIRCUMSTANTIAL    EVIDENCE. 

Sect.  1. — Essential  Characteristics  of  Circumstantial  Evidence        V  16 

2. — Presumptions      .........  LS 

3. — Relative  value  of  Direct  and  Indirect  or  Circumstantial 

Evidence  .........  28 

4. — Of  the  Sources  and  Classification  of  Circumstantial  Evi- 
dence      ..........  36 

CHAPTER  III. 

INCULPATORY    MORAL    INDICATIONS. 

Sect.  1. — Motives  to  Crime 39 

2. — Declarations  and  acts  indicative  of  guilty  Consciousness 

or  Intention      .........  45 

3. — Preparations    and    opportunity    for   the    Commission    of 

Crime      ..........  52 

4. — Recent  Possession  of  the  Fruits  of  Crime  .  .  .  53 
5. — Unexplained  Appearances  of  Suspicion,  and  attempts  to 

account  for  them  by  false  Representations  .  .  .65 
6. — Indirect  Confessional  Evidence  .         .         .         .         .68 

7. — The  Suppression,  Destruction,  Fabrication  and  Simulation 

of  Evidence 82 

8. — Statutory  Presumptions 93 

9.— Scientific  Testimony 99 


X  TABLE   OF   CONTENTS. 

CHAPTER  IV. 

EXTRINSIC    AND    MECHANICAL   INCULPATORY   INDICATIONS. 

PAGE 

Sect.  1. — Identification  of  Person 113 

2. — Identification  of  Articles  of  Property         .         .         .         .   127 

3, — Proof  of  Handwriting 132 

4. — Verification  of  Dates  and  Time 140 

CHAPTER  V. 

EXCULPATORY  PRESUMPTIONS    AND   CIRCUMSTANTIAL   EVIDENCE      .  .    147 

CHAPTER  VI. 

RULES     OF     INDUCTION     SPECIALLY     APPLICABLE     TO     CIRCUMSTANTIAL 

EVIDENCE 173 

CHAPTER  VII. 

PROOF   OF    THE    CORPUS   DELICTI. 

Sect.  1. — General  Doctrine  as  to  the  Proof  of  the  Corpus  Delicti  .  199 
2. — Proof  of  the  Corpus  Delicti  by  Circumstantial  Evidence  .  200 
3. — Application   of  the  General   Principle   to    Proof  of  the 

Corpus  Delicti  in  Cases  of  Homicide  ....  206 
4. — Application   of  the   General   Principle   to    Proof  of  the 

Corpus  Delicti  in  Cases  of  Poisoning  ....  216 
5. — Application   of  the   General   Principle   to    Proof  of  the 

Corpus  Delicti  in  Cases  of  Infanticide    ....  266 

CHAPTER  VIII. 

OF   THE    FORCE   AND   EFFECT   OF   CIRCUMSTANTIAL  *EVIDENCE. 
CONCLUSION. 

Sect.  1. — General  Grounds  of  the  Force  of  Circumstantial  Evidence.  273 
2. — Considerations  which  augment  the  Force  of  Circumstan- 
tial Evidence  in  particular  cases     .....  278 
3. — Cases  in  illustration  of  the  force  of  Circumstantial  Evi- 
dence        291 

4. — Conclusion 313 


TABLE  OF  CASES  AND  STATUTES. 


CIVIL  CASES. 


Allport  V.  Meek,  133. 
Annesley  v.  Earl  of  Anglesea,  84. 
Armorie  v.  Delamirie,  83. 
Ashford  v.  Thornton,  183. 

Banbury  Peerage,  34. 
Bromage  v.  Rice,  133. 

Clinch  V.  Mackley,  113. 
Clunnes  v.  Pezzey,  84. 
Constable  v.  Steibel,  134. 
Crisp  V.  Walpole,  140. 

Dalston  v.  Cotsworth,  84. 

Doe  V.  Bainbridge,  102. 

Doe  V.  Davies,  133. 

Doe  V.  Day,  117. 

Doe  V.  Newton,  133. 

Doe  V.  Suckermore,  132,  134,  135. 

Doe  V.  Turford,  195. 

Dyce  Sombre,  in  re,  103. 

Eagleton  v.  Kingston,  137. 

Fitzwalter  Peerage,  133,  134. 

Goodtitle  v.  Revett,  134. 
Griffits  V.  Ivery,  133. 


Griffith  V.  Williams,  133. 
Gurney  v.  Langlands,  134. 

Hughes  V.  Rogers,  136. 

Lawton  v.  Sweeney,  84. 

Miller  v.  Eraser,  141. 
Mortimer  v.  Craddock,  83. 
Mossom  V.  Ivy,  142. 

Reg.    V.    Midland    Railway    Com- 
pany, 84. 
Robson  V.  Rocke,  137,  138. 
Rodger  v.  Kay,  141. 
Rntledge  v.  Carruthers,  118. 

Smith  V.  Earl  of  Ferrers,  140. 
Solita  V.  Yarrow,  133. 

Taylor  v.  Taylor,  275. 
Tracy  Peerage,,  84,  103,  134. 

Waddington  v.  Cousins,  133. 
Wareing  v.  Wareing,  184. 
Wood  V.  Brown,  34,  113. 

Young  V.  Brown,  134. 
Youn";  v.  Horner,  136. 


CRIMINAL  CASES. 


Adams,  56. 
Alcorn,  218. 
Almon,  94. 
Angus,  266. 


Anonymous,  56,  71,  115,  121,   12.'^, 

14l',  149,  154,  205,  207. 
Aram,  Eugene,  79. 
'  Arden,  118. 


Xll 


TABLE   OF   CASES    AND    STATUTES. 


Arundel,  160. 
Avery,  280. 

Baines,  169. 

Ball,  49. 

Baldwin,  154. 

Banks,  57,  98. 

Baranelli,  103. 

Barker,  152. 

Barnard,  163, 

Bate,  129,  266. 

Bauer,  170. 

Beards,  126. 

Belaney,  80,  252,  258. 

Bell,  45. 

Benjamin,  161. 

Bickle,  218. 

Bingham,  139,  158. 

Bishop,  211. 

Blandy,  30,  89,  195. 

Bleasdale,  50. 

Bolam,  90. 

Boober,  157. 

Boorns,  207. 

Booth,  106,  216. 

Bowditch,  153. 

Bowman,  60. 

Brain,  267. 

Br^nnan,  167,  171. 

Brindley,  123. 

Brook,  57,  116,  118. 

Brookes,  157. 

Buish,  159. 

Burdett,  18,  54,  85,  184,  185,  199, 

201. 
Burdock,  62. 
Burke,  211. 
Burt,  165. 
Burton,  132,  205. 
Butler,  52. 
Byrne,  116. 

Calder,  240. 
Cane,  170. 
Canning,  152,  168. 


Carroll,  45. 

Carsewell,  136. 

Cator,  134. 

Clark,  67. 

Clarke,  152. 

Clay,  152. 

Clewes,  51,  74,  213. 

Cochrane,  Lord,  73,  288. 

Cochrane,  184.  ^ 

Coke,  49. 

Cole,  165. 

Coleman,  77,  82,  113. 

Collier,  161. 

Connor,  285. 

Cook,  88,  213. 

Cooper,  56. 

Coppard,  158. 

Corder,  216. 

Cornwallis,  T-ord,  195. 

Courtnage  and    Mossingham,  121, 

163. 
Courvoisier,  119. 
Coyle,  153. 

Crossfield,  46,  79,  85,  160. 
Crossley,  195. 
Crowhurst,  54. 
Crump,  120. 
Crutchley,  267. 
Cruttenden,  56. 
Cuthell,  94. 

Davidson,  164,  165,  268. 

Dawtrey,  66. 

Dean,  152. 

Debley,  54. 

Delahunt,  153. 

DelaMotte,  85,  133. 

Despard,  186. 

Dewhirst,  57- 

Dixon,  44. 

Donellan,  30,  85,  88,  89,  233,  236, 

241. 
Donnall,  81,  85,  88,  89,  156,  233, 

236,  247. 


TABLE  OF  CASES  AND  STATUTES. 


Xlll 


Dossett,  48,  *240. 

Downie  and  Milne,  59. 

Downing,  159,  174,  176,  28G. 

Dredge,  131,  205. 

Drory,  162. 

Duffin,  45. 

Dunn,  50. 

Dunnett,  99. 

Dursley,  61.    ^ 

Dyer,  61. 

Edge,  187,  212. 
Eldridge,  69. 
Ellis,  60. 
Enoch,  267. 

Farrington,  44. 
Faulkner,  69. 
Fenning,  159,  218. 
Ferguson,  266. 
Ferrers,  Earl,  43. 
Fields,  77. 
Fisher,  69. 
Fitter,  90,  162. 
Foster,  50. 
Francis,  102. 
Eraser;  168. 
Freeman,  163. 
,  Frost,  160,  164,  186. 
Fuller,  49,  52,  61. 

Gardelle,  88. 
Geering,  50,  240. 
Gilbert,  208. 
Gill,  63,  68, 
Glenn,  153. 
Good,  88,  213,  214. 
Gould,  130. 
Graham,  222,  241. 
Green,  49,  82,  207. 
Greenacre,  89,  285. 
Grounal,  268. 
Guttridge,  188. 

Hadfield,  43. 


Ilaggcrty,  79. 

Haigh,  164,  169,  171. 

Haines,  116. 

Hall,  49. 

Hanson,  196,  231. 

Hardy,  169. 

Harmer,  54. 

Harvey,  44. 

Hawkins,  159. 

Haworth,  188. 

Hayes,  214. 

Heath,  120. 

Heaton,  126. 

Henley,  212. 

Hewlett,  56. 

Higgins,  75. 

Hindmarsh,  208,  209. 

Hinley,  50. 

Hobson,  195. 

Hodges,  35,  120,  191. 

Hodgkins,  165. 

Hodgson,  49. 

Holroyd,  89. 

Hooper,  132. 

Hopkins,  213. 

Home,  188. 

Howe,  301, 

Howell,  61. 

Hubert,  71. 

Hughes,  55. 

Humphreys,  122,  140, 142,  191,  195, 

206,  214. 
Hunter,  160,  171,  172,  188. 

Ings,  196,  231. 
Isaacs,  66. 

Jarvis,  49. 

Jefferys  and  Swan,  92,  119. 

Johnson,  134,  136,  139. 

Jones,  74. 

Jones  and  Welch,  78. 

Killan,  92,  171. 
Kirkwood,  49. 


XIV 


TABLE    OF   CASES   AND   STATUTES. 


Ley  ton,  102. 

Looker,  68,  127,  161,  178,  286. 

M'Clarens,  57,  157. 

M'Daniel,  153. 

MacDougal,  214. 

M'Kechnie  and  Tolmie,  64,  131. 

M'Kinley,  148. 

M'Naghten,  101. 

Manning  and  Wife,  191,  192,  195, 

214,  277,  286. 
Mansfield,  58. 
Martin,  43,  49,  152. 
May,  240. 
Mayenc,  127,  164. 
Mellor,  169,  186. 
Melville,  Lord,  83. 
Millward,  49. 
Mountford,  121. 

Nairn  and  Ogilby,  90,  159. 

Nation,  105. 

Newton,  102,  111,  216. 

O'Coigley,  79. 
Oddy,  51. 
Oflford,  43. 

Okeman,  36,  92,  118. 
Oldham,  94. 
Oliver,  118. 

Palayo,  121. 

Palmer,  44,  85,  88,  146,  159,  217, 

219,  233,  235,  238,  258. 
Partridge,  56. 

Patch,  32, 89,  90, 118, 145, 191,  297. 
Pate,  102. 
Perrys,  72,  207. 
Poolton,  267. 

Reeves,  267. 

Richardson,  118,  126,  168,  291. 

Rickman,  61. 

Riembaur,  70. 


Robinson,  93,  114. 

Robins,  152. 

Rocke,  152. 

Rogan  and  Elliott,  166. 

Rooke,  158. 

Roper,  188. 

Ross,  209,  211,  214. 

Rudge,  213. 

Rush,  140,  171,  283. 

Sawyer,  115. 

Scaife,  188. 

Schofield,  160,  169. 

Scofield,  119. 

Sellis,  267. 

Simpson,  268. 

Simon,  164. 

Shrimpton,  166. 

Shaw,  126. 

Smethurst,  100,  218,  232,  233,  265. 

Smith,  32,  49,  54,  126,  157,  191. 

Smith,  Varnham,  and  Timms,  62, 

126,  304. 
Smith,  Madeleine,   146,    190,  196, 

230. 
Spiggott,  126. 
Spooner,  126. 
Squires  and  Wells,  152. 
Standsfield,  36. 
Steptoe,  75. 
Stewart,  269. 
Sunderland,  49. 

Taverner,  49. 

Tawell,  49,  68,  194,  203,  204,  206, 

239. 
Taylor,  48,  133. 
Thomas,  87. 
Thornton,  68,  127,  145,  161,  168, 

193,  286. 
Thurtell,  164,  212. 
Timms,  62,  126,  304. 
Tippett,  69. 
Trannock,  22. 


TABLE  OF  CASES  AND  STATUTES. 


XV 


Trilloe,  267. 
Turner,  47. 

Varnham,  62,  126,  3U4. 
Vaughan,  153. 

AValford.  285. 

AVall,  188. 

AVarrickshall,  69. 

Watson,  186. 

Webster,  81,  82,  89,  129,  133,  140, 

169,  186,  195,  214. 
Wescombe,  90,  159. 


Westron,  103. 

Whalley,  150. 

Whitby,  153. 

White,  69,  117,  131. 

Whittall,  163. 

Williams,  137. 

Wilmet,  98. 

Wilson,  55,  76. 

Wishart,  154. 

Wood,  166. 

Woodburne  and  Coke,  45,  158. 

Wright,  267. 


STATUTES. 


PAGE 

21  Jac.  I,  c.  27  .     .  23,  99,  157,  269 

22  &  23  Car.  II,  c.  1  .  .  .  .  45' 
9  &  10  Will.  Ill,  c.  41  93,  95,  97,  98 
17  Geo.  II,  c.  40,  s.  10    ...     97 

21  Geo.  Ill,  c.  49 93 

39  &  40  Geo.  Ill,  c.  89  .  .  .  93 
43  Geo.  Ill,  c.  58,  s.  3    .     .     .  269 

59  Geo.  Ill,  c.  46 183 

7  &  8  Geo.  IV,  e.  28,  s.  5  .  .  79 
7  &  8  Geo.  IV,  c.  29,  s.  48  .  .  51 
9  Geo.  IV,  c.  31,  s.  14  .  .  .  269 
11  Geo.  IV,  and  1  Will.  IV,  c.  66  93 
2  Will.  IV,  c.  30,  s.  10  .  .  .  93 
2  Will.  IV,  c.  34,  s.  7     ...     51 


5  c%  6  Will.  IV,  c.  19      , 

6  &  7  Will.  IV,  c.  Ill     , 

6  &  7  Will.  IV,  c.  114,  88.  3 

7  &  8  Vict.  c.  101,  s.  3    , 

7  &  8  Vict.  c.  112,  8.  48  , 

8  &  9  Vict.  c.  10,  8.  6      . 
8  &  9  Vict.  c.  87,  ss.  5,  6,  29 
8  &  9  Vict.  c.  109  .     .     . 
14  &  15  Vict.  0.  19,  8.  9  . 
14  &  15  Vict.  c.  100,  s.  16 
14  &  15  Vict.  c.  109   .     . 
17  &  18  Vict.  c.  125,  s.  27 
20  Vict.  c.  13,  s.  49    .     . 
22  &  23  Vict.  c.  33,  s.  3  . 


98 
166 
285 
276 

98 
276 

87 

93 
166 

51 

93 
136 

73 
285 


THE  PRINCIPLES 


CIRCUMSTANTIAL  EVIDENCE. 


CHAPTER  L 
EVIDENCE  IN  GENERAL. 


Section  1. 
the  nature  of  evidence. 

It  will  greatly  conduce  to  the  formation  of  clear  and 
correct  notions  on  the  subject  of  Circumstantial  Evi- 
dence, to  take  a  brief  introductory  view  of  the  nature  of 
evidence  in  general,  of  some  of  its  various  kinds,  and  of 
the  nature  of  the  assurance  which  each  of  them  is  cal- 
culated to  produce. 

The  great  object  of  all  intellectual  research  is  the  dis- 
covery of  truth,  which  is  either  objective  and  absolute, 
in  which  sense  it  is  synonymous  w^ith  being  or  exist- 
ence, or  subjective  and  relative,  in  which  acceptation 
it  expresses  the  conformity  of  our  ideas  and  mental 
convictions  with  the  nature  and  reality  of  events  and 
things. 

The  Judgment  is  that  faculty  of  the  mind  which  is . 
principally  concerned  in  the  investigation  and  acquisition 
of  truth ;  and  its  exercise  is  the  intellectual  act  by  which 
1 


A  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

one  thing  is  perceived  and  affirmed  of  another,  or  the 
reverse. 

Every  conclusion  of  the  judgment,  whatever  may  be 
its  subject,  is  the  result  of  evidence  —  a  word  which 
(derived  from  words  in  the  dead  languages  signifying  to 
see,  to  know)  by  a  natural  transition  is  applied  to  denote 
the  means  by  which  any  alleged  matter  of  fact,  the  truth 
of  which  is  submitted  to  investigation,  is  established  or 
disproved. 

The  term  proof  is  often  confounded  with  that  of  evi- 
dence, and  applied  to  denote  the  medium  of  proof,  where- 
as in  strictness  it  marks  merely  the  effect  of  evidence. 
When  the  result  of  evidence  is  undoubting  assent  to  the 
certainty  of  the  event  or  proposition  which  is  the  subject- 
matter  of  inquiry,  such  event  or  proposition  is  said  to  be 
j)roved ;  and,  according  to  the  nature  of  the  evidence  on 
which  such  conclusion  is  grounded,  it  is  either  known  or 
believed  to  be  true.  Our  judgments,  then,  are  the  con- 
sequence of  proof;  and  proof  is  that  quantity  of  appro- 
priate evidence  which  produces  assurance  and  certainty  ; 
evidence,  therefore,  differs  from  proof,  as  cause  from  effect. 

It  is  unnecessary,  in  relation  to  the  subject  of  this  sec- 
tion, to  mention  the  inferior  degrees  of  assurance,  which 
will  be  more  appropriately  noticed  in  another  place. 

Section  2. 

the  various  kinds  of  evidence. 

Truth  is  either  abstract  and  necessary,  or  probable  and 
contingent ;  and  each  of  these  kinds  of  truth  is  discover- 
able by  appropriate  but  necessarily  different  kinds  of  evi- 
dence. This  classification,  however,  is  not  founded  in 
any  essential  diff'erence  in  the  nature  of  truths  themselves, 


THE    VARIOUS    KINDS    OF    EVIDKNCE.  3 

and  has  reference  merely  to  our  imperfect  capacity  and 
ability  of  perceiving  them ;  since  to  an  Infinite  Intelli- 
gence nothing  which  is  the  object  of  knowledge  can  be 
probable,  and  everything  must  be  perceived  absolutely 
and  really  as  it  is." " 

In  many  instances  the  correspondence  of  our  ideas 
with  realities  is  perceived  instantaneously,  and  without 
any  conscious  intermediate  process  of  reasoning,  in  which 
cases  the  judgment  is  said  to  be  intuitive,  from  a  word 
signifying  to  look  at ;  and  the  evidence  on  which  it  is 
founded  is  also  denominated  intuitive ;  though  it  would 
perhaps  be  more  correct  to  use  that  word  as  descriptive 
of  the  nature  of  the  mental  operation,  rather  than  of  the 
kind  of  evidence  on  which  it  rests. 

Intuition  is  the  foundation  of  demonstration,  which 
consists  of  a  series  of  steps  severally  resolvable  into  some 
intuitive  truth.  Demonstration  concerns  only  necessary 
and  immutable  truth ;  and  its  first  principles  are  defini- 
tions, which  exclude  all  ambiguities  of  language,  and 
lead  to  infallibly  certain  conclusions.'' 

But  the  subjects  which  admit  of  the  certainty  of  intu- 
ition and  demonstration  are  comparatively  few.  Innu- 
merable truths,  the  knowledge  of  which  is  indispensable 
to  happiness,  if  not  to  existence,  depend  upon  evidence  of 
a  totally  different  kind,  and  admit  of  no  other  guide  than 
our  own  observation  and  experience,  or  the  testimony  of 
our  fellow-men.  Such  truths  involve  questions  of  fact  or 
of  actual  existence,  which,  as  they  are  not  of  a  necessary 
nature,  may  or  may  not  have  existed,  without  involving 
any  contradiction,  and  as  to  which  our  reasonings  and 
deductions  may  be  erroneous.     Such  evidence  is  called 

*  Butler's  Analogy,  Introduction. 

^  2  Stewart's  Elements  of  the  Philosophy  of  the  Iluuian  Mind,  ch.  ii,  s.  3. 


4  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

MORAL  EVIDENCE ;  probably  because  its  principal  applica- 
tion is  to  subjects  directly  or  remotely  connected  with 
moral  conduct  and  relations. 

Of  the  various  kinds  of  moral  evidence,  that  of  testi- 
mony is  the  most  comprehensive  and  important  in  its  re- 
lation to  human  concerns  ;  so  extensive  is  its  application, 
that  to  enter  on  the  subject  of  testimony  at  large  would 
be  to  treat  of  the  conduct  of  the  understanding  in  rela- 
tion to  the  greater  portion  of  human  affairs.  The  design 
of  this  essay  is  limited  to  the  consideration  of  some  of 
the  principal  rules  and  doctrines  peculiar  to  circumstantial 
evidence  as  applicable  to  criminal  jurisprudence,  one  of 
the  leading  heads  under  which  philosophical  and  juridical 
writers  consider  the  subject  of  testimonial  evidence.  Noi 
is  it  proposed  to  treat,  except  cursorily  and  incidentally, 
of  documentary  circumstantial  evidence  ;  a  subject  which, 
however  interesting  in  itself,  is  applicable  principally  to 
discussions  upon  the  genuineness  of  historical  and  other 
writings ;  and  such  cases  of  this  description  as  occasion- 
ally happen  in  the  concerns  of  common  life  are  referable 
to  general  principles,  which  equally  apply  to  circumstan- 
tial evidence  of  every  kind. 

Considering  how  many  of  our  most  momentous  deter- 
minations are  grounded  upon  circumstantial  evidence, 
and  how  important  it  is  that  they  should  be  correctly 
formed,  the  subject  is  one  of  deep  interest  and  moment. 
It  would  be  most  erroneous  to  conclude  that,  because  it 
is  illustrated  principally  by  forensic  occurrences,  it  espe- 
cially concerns  the  business  of  the  members  of  a  par- 
ticular profession.  Such  events  are  amongst  the  most 
interesting  occurrences  of  social  life ;  the  subject  relates 
to  an  intellectual  process,  called  into  exercise  in  almost 
every  branch  of  human  speculation  and  research. 


nature  of  the  assurance  produced.  5 

Section  3. 

nature  of  the  assurance  produced  by  different  kinds 
of  evidence. 

In  investigations  of  every  kind  it  is  essential  that  the 
correct  estimate  be  made  of  the  kind  and  degree  of 
assurance  of  which  the  subject  admits. 

Since  the  evidence  of  demonstration  relates  to  neces- 
sary truths  (as  to  which  the  supposition  of  the  contrary 
involves  not  merely  what  is  not  and  cannot  be  true,  but 
what  is  also  absurd),  and  since  moral  evidence  is  the 
basis  of  contingent  or  probable  truth  merely,  it  follows 
that  the  convictions  which  these  various  kinds  of  evi- 
dence are  calculated  to  produce  must  be  of  very  different 
natures.  In  the  former  case  absolute  certitude  is  the 
result ;  to  which  moral  certainty,  the  highest  degree  of 
assurance  of  which  truths  of  the  latter  class  admit,  is 
necessarily  inferior. 

Unlike  the  assent,  which  is  the  inevitable  result  of 
mathematical  reasoning,  belief  in  the  truth  of  events 
may  be  of  various  degrees,  from  moral  certainty,  the 
highest,  to  that  of  mere  probability,  the  lowest ;  between 
which  extremes  there  are  innumerable  degrees  and 
shades  of  conviction,  which  the  latency  of  mental  oper- 
ations and  the  unavoidable  imperfections  of  language 
render  it  impossible  to  define  or  express.  In  subjects 
of  moral  science  the  want  of  appropriate  words,  and  the 
occasional  application  of  the  same  word  to  denote  differ- 
ent things,  have  given  occasion  to  much  obscurity  and 
confusion,  both  of  idea  and  expression ;  of  which  a 
remarkable  exemplification  is  presented  in  the  words 
probability  and  certainty. 


6  "     WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

The  general  meaning  of  the  word  probability  is  like- 
ness or  similarity  to  some  other  truth,  event,  or  thing." 
Sometimes  the  word  probability  is  used  to  express  the 
preponderance  of  the  evidence  or  arguments  in  favor  of 
the  existence  of  a  particular  event  or  proposition,  or 
adverse  to  it ;  and  sometimes  as  assertive  of  the  abstract 
and  intrinsic  credibility  of  a  fact  or  event. 

In  its  former  sense  the  word  probability  is  applied  as 
well  to  certain  mathematical  subjects  as  to  questions 
dependent  upon  moral  evidence,  and  expresses  the  ratio 
of  the  favorable  cases  to  all  the  possible  cases  by  which 
an  event  may  happen  or  fail ;  and*  it  is  represented  by  a 
fraction,  the  numerator  of  which  is  the  sum  of  the  favor- 
able cases,  and  the  denominator  the  whole  number  of  pos- 
sible cases,  certainty  being  represented  by  unity.  If  the 
number  of  chances  for  the  happening  of  the  event  be  =0, 
and  the  event  be  consequently  impossible,  the  expression 
for  that  chance  will  be  =0 ;  and  so,  if  the  number  of 
chances  of  the  failure  of  the  event  be  =0,  and  the  event 
be  therefore  certain,  the  expression  for  the  chance  of 
failure  will  also  be  =0.  If  m+n  be  the  whole  number 
of  cases,  ni  the  favorable,  and  n  the  unfavorable  ones, 
the  probability  of  the  event  is  m  :m-\-n.  It  follows  that 
if  there  be  an  equality  of  chances  for  the  happening  or 
the  failing  of  an  event,  the  fraction  expressive  of  the 
probability  is  =J,  the  mean  between  certainty  and 
impossibility;''  and  probability,  therefore,  includes  the 
whole  range  between  those  extremes. 

The  terms  certainty  and  probability  are,  however, 
essentially  different  in  meaning  as  applied  to  moral  evi- 

^  Butler's  Analogy,  tit  s%ipra  ;  Locke's  Essay  Concerning  Human  Understanding, 
b.  iv,  ch.  XV ;  Cic.  De  Inventione,  c.  47. 
"  Kirwan's  Logic,  part  iii,  ch.  vii,  s.  1. 


NATURE    OF    THE    ASSURANCE    PRODUCED.  I 

dence,  from  what  they  import  in  a  mathematical  senne ; 
inasmuch  as  the  elements  of  moral  certainty  and  moral 
probability,  notwithstanding  the  ingenious  arguments 
which  have  been  urged  to  the  contrary,  appear  to  be 
incapable  of  numerical  expression,  and  because  it  is  not 
possible  to  assign  all  the  chances  for  or  against  the 
occurrence  of  any  particular  event. 

The  expression  moral  probability,  though  liable  to 
objection  on  account  of  its  deficiency  in  precision,  is,  for 
want  of  one  more  definite  and  appropriate,  of  frequent 
and  necessary  use ;  nor  will  its  application  lead  to  mis- 
take, if  it. be  remembered  that  it  denotes  only  the  pre- 
ponderance of  probability,  resulting  from  the  comparison 
and  estimate  of  moral  evidence,  and  that  if  this  were 
capable  of  being  expressed  with  exactness,  it  would  lose 
its  essential  characteristic  and  possess  the  certainty  of 
demonstration. 

The  preceding  strictures  equally  apply  to  the  term 
moral  certainty,  or  its  equivalent,  moral  conviction, 
which  must  be  understood,  not  as  importing  deficiency 
in  the  proof,  but  only  as  descriptive  of  the  kind  of  cer- 
tainty which  is  attainable  by  means  of  moral  evidence ; 
and  it  is  that  full  and  complete  assurance  which  admits 
of  no  degrees,  and  induces  a  sound  mind  to  act  without 
doubt  upon  the  conclusions  to  which  it  naturally  and 
reasonably  leads."" 

It  has  been  justly  and  powerfully  remarked  by  a  noble 
and  learned  writer,  that  "  the  degree  of  excellence  and 
of  strength  to  which  testimony  may  rise  seems  almost 
indefinite.  There  is  hardly  any  cogency  which  it  is  not 
capable,  by  possible  supposition,  of  attaining.  The  end- 
less multiplication  of  witnesses,  the  unbounded  variety  of 

"  2  Stewart's  Elements,  ch.  ii,  s.  4 ;   Encyelopaedia  Brit.,  art.  Metaphysics,  part  i. 


5  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

their  habits  of  thinking,  their  prejudices,  their  interests, 
afford  the  means  of  conceiving  the  force  of  their  testi- 
mony augmented  ad  infinitum,  because  these  circum- 
stances afford  the  means  of  diminishing  indefinitely  the 
chances  of  their  being  all  mistaken,  all  misled,  or  all 
combining  to  deceive  us."*  But  if  evidence  leave  rea- 
sonable ground  for  doubt,  the  conclusion  cannot  be 
morally  certain,  however  great  may  be  the  preponder- 
ance of  probability  in  its  favor. 

Some  mathematical  writers  have  propounded  numeri- 
cal fractions  for  expressing  moral  certainty ;  which,  as 
might  have  been  expected,  have  been  of  very  different 
values.  But  the  nature  of  the  subject  precludes  the  pos- 
sibility of  reducing  to  the  form  of  arithmetical  notation 
the  subtle,  shifting,  and  evanescent  elements  of  moral 
assurance,  or  of  bringing  to  quantitive  comparison  things 
so  inherently  different  as  certainty  and  probability. 

Other  writers  have  given,  in  a  more  general  manner, 
mathematical  form  to  moral  reasonings  and  judgments ; 
but  it  is  questionable  if  they  have  done  so  with  any  use- 
ful result,  however  they  may  have  shown  their  own 
ingenuity.^  Though  it  is  true  that  some  very  important 
deductions  from  the  doctrine  of  chances  are  applicable 
to  events  dependent  upon  the  duration  of  human  life, 
such  as  the  expectation  and  the  decrement  of  life,  the 
law  of  mortality,  the  value  of  annuities,  and  other  con- 
tingencies, and  also  to  reasoning  in  the  abstract  upon 
particular  cases  of  testimonial  evidence,  yet  it  is  obvi- 
ous that  all  such  conclusions  depend  upon  circum- 
stances, which,  notwithstanding  that  to  the  unreflecting 

»  Lord  Brougham's  Discourse  on  Natural  Theology,  251. 

•>  See  Kirwan's   Logic,  part   iii,  ch.  vii,  s.  21  ;    Whately's  Logic,  b.  iv,  ch.  ii, 
s.  1. 


NATURE   OF   THE    ASSURANCE   PRODUCED.  9 

observer  they  appear  casual,  uncertain  and  irreducible 
to  principle,  unlike  moral  facts  and  reasonings  in  gen- 
eral, are  really  based  upon  and  deducible  from  numerical 
elements. 

A  learned  writer,  whose  writings,  in  despite  of  his  ec- 
centricities of  matter  and  of  style,  have  exercised  great 
influence  in  awakening  the  spirit  of  judicial  reformation, 
asks,''  "  Does  justice  require  less  precision  than  chemis- 
try ?"  The  truth  is  that  the  precision  attainable  in  the 
one  case  is  of  a  nature  of  which  the  other  does  not  admit. 
It  would  be  absurd  to  require  the  proof  of  an  historic 
event  by  the  same  kind  of  evidence  and  reasoning  as 
that  which  establishes  the  equality  of  triangles  upon 
equal  bases,  and  between  the  same  parallels,  or  that 
the  latiis  rectum  in  an  ellipse  is  a  third  proportional  to 
the  major  and  minor  axes. 

This  conscript  father  of  legal  reforms**  has  himself  sup- 
plied a  memorable  illustration  of  the  futility  of  his  own 
inquiry.  He  has  proposed  a  scale  for  measuring  the  de- 
grees of  belief,  with  a  positive  and  a  negative  side,  each 
divided  into  ten  degrees,  respectively  affirming  and  de- 
nying the  same  fact,  zero  denoting  the  absence  of  belief; 
and  the  witness  is  to  be  asked  what  degree  expresses 
his  belief  most  correctly.  With  characteristic  ardor, 
the  venerable  author  gravely  argues  that  this  instrument 
could  be  employed  without  confusion,  difficulty,  or  incon- 
venience.*' But  MAN  must  become  wiser  and  better  be- 
fore the  mass  of  his  species  can  be  entrusted  with  the  use 

a  Bentham's  Traite  des  Preuves  Judiciaires,  b.  i,  ch.  xvii;  Mackintosh's  Dis- 
course on  the  Progress  of  Ethical  Philosophy,  290. 

*>  1  Hoffman's  Course  of  Legal  Study,  364. 

"  Bentham's  Rationale  of  Judicial  Ev.,  b.  i,  ch.  vi,  s.  1 ;  and  see  in  Kirwan's 
Logic,  part  iii,  ch.  vii,  s.  21,  a  proposed  scale  of  testimonial  probability. 


10  WILLS    ON   CIRCUMSTANTIAL    EVIDENCE. 

of  such  a  moral  guage,  from  which  the  unassuming  and 
the  wise  would  shrink,  while  it  would  be  eagerly  grasped 
by  the  conceited,  the  interested,  and  the  bold. 

But  though  a  process  strictly  mathematical  cannot  be 
applied  to  estimate  the  effect  of  moral  evidence,  a  pro- 
ceeding somewhat  analogous  is  observed  in  the  examina- 
tion of  a  group  of  facts  adduced  as  grounds  for  inferring 
the  existence  of  some  other  fact.  Although  an  exact  value 
cannot  be  assigned  to  the  testimonial  evidence  for  or 
against  a  matter  of  disputed  fact,  the  separate  testimony 
of  each  of  the  witnesses  has  nevertheless  a  determinate 
relative  value,  depending  upon  considerations  which  it 
would  be  foreign  to  the  present  subject  to  enumerate. 
On  one  side  of  the  equation  are  mentally  collected  all 
the  facts  and  circumstances  which  have  an  affirmative 
value ;  and  on  the  other,  all  those  which  either  lead  to 
an  opposite  inference,  or  tend  to  diminish  the  weight,  or 
to  show  the  non-relevancy,  of  all  or  any  of  the  circum- 
stances which  have  been  put  into  the  opposite  scale.  The 
value  of  each  separate  portion  of  the  evidence  is  sep- 
arately estimated,  and,  as  in  algebraic  addition,  the  op- 
posite quantities,  positive  and  negative,  are  united,  and 
the  balance  of  probabilities  is  what  remains  as  the  ground 
of  human  belief  and  judgment.* 

But,  as  has  been  already  intimated,  there  is  another 
sense  in  which  the  word  probability  is  often  used,  and 
in  which  it  denotes  credibility  or  internal  probability, 
and  expresses  our  judgment  of  the  accordance  or  simi- 
larity of  events   with   which   we    become  acquainte<l, 

*  See  some  remarks  on  this  passage  in  a  learned  paper  "On  the  Measure  of  the 
Force  of  Testimony  in  Cases  of  Legal  Evidence,"  by  John  Tozer,  Esq.,  M.A.,  8 
Camb.  Phil.  Trans.,  and  36  Phil.  Mag.,  .3d  ser.  78. 


NATURE   OF    THE    ASSURANCE    PRODUCED.  1  I 

through  the  medium  of  testimony,  with  facts  previously 
known  by  experience.* 

The  results  of  experience  are,  expressly  or  impliedly, 
assumed  as  the  standard  of  credibility  in  all  questions 
dependent  upon  moral  evidence.  By  means  of  the  senses 
and  of  our  own  consciousness  we  become  acquainted  with 
external  nature,  and  with  the  characteristics  and  proper- 
ties of  physical  things  and  moral  beings,  which  are  then 
made  the  subjects  of  memory,  reflection,  and  other  intel- 
lectual operations ;  and  thus  ultimately  the  mind  is  led 
to  the  recognition  of  the  principle  of  causality  and  other 
necessary  truths,  which  become  the  basis  and  standard 
of  comparison  in  similar  and  analogous  circumstances. 
The  groundwork  of  our  reasoning  is  an  instinctive  and 
inevitable  belief  in  the  truthfulness  and  legitimacy  of  our 
own  faculties  and  in  the  permanence  of  the  order  of 
external  nature,  as  also  in  the  existence  of  moral  causes, 
which  operate  with  an  unvarying  uniformity,  not  inferior 
to,  and,  perhaps,  surpassing  even,  the  stability  of  physical 
laws;  though,  relatively  to  our  feeble  and  limited  powers 
of  observation  and  comprehension,  and  on  account  of  the 
latency,  subtlety,  and  fugitiveness  of  mental  operations, 
and  of  the  infinite  diversities  of  individual  men,  there  is 
apparently  more  of  uncertainty  and  confusion  in  moral 
than  in  material  phenomena.^ 

Experience  comprehends  not  merely  the  facts  and  de- 
ductions of  personal  observation,  but  the  observations  of 
mankind  at  large  of  every  age  and  country.  It  would  be 
absurd  to  disbelieve  and  reject  as  incredible  the  relations 
of  events  because  such  events  have  not  occurred  within 
the  range  of  individual  experience.     We  may  remember 

*  Abercrombie  on  the  Intellectual  Powers,  part  ii,  s.  3. 

•>  Hampden's  Lectures  on  Moral  Philosophy,  150 ;    Abercrombie's  Philosophy  ot 
the  Moral  Feelings.  Prelim.  Obs.,  s.  ii. 


12  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

the  unreasonable  incredulity  of  the  King  of  Siam,  who, 
when  the  Dutch  ambassador  told  him  that  in  his  country 
the  water  in  cold  weather  became  so  hard  that  men 
walked  upon  it,  and  that  it  would  even  bear  an  ele- 
phant, replied,  "  Hitherto  I  have  believed  the  strange 
things  you  have  told  me,  because  I  look  upon  you  as  a 
sober,  fair  man,  but  now  I  am  sure  you  lie."'' 

By  experience,  facts  or  events  of  the  same  character 
are  referred  to  causes  of  the  same  kind ;  by  analogy, 
facts  and  events  similar  in  some  but  not  in  all  of  their 
particulars  to  other  facts  and  occurrences,  are  con- 
cluded to  have  been  produced  by  a  similar  cause :  so 
that  analogy  vastly  exceeds  in  its  range  the  limits  of 
experience  in  its  widest  latitude,  though  their  bounda- 
ries may  sometimes  be  coincident,  and  sometimes  undis- 
tinguishable.  It  has  been  profoundly  remarked  that 
"in  whatever  manner  the  province  of  experience,  strictly 
so  called,  comes  to  be  thus  enlarged,  it  is  perfectly 
manifest  that,  without  some  such  provision  for  this  pur- 
pose, the  principles  of  our  constitution  would  not  have 
been  duly  adjusted  to  the  scene  in  which  we  have  to 
act.  Were  we  not  so  formed  as  eagerly  to  seize  the 
resembling  features  of  different  things  and  different 
events,  and  to  extend  our  conclusions  from  the  indi- 
vidual to.  the  species,  life  would  elapse  before  we  had 
acquired  the  first  rudiments  of  that  knowledge  which  is 
essential  to  our  animal  existence.''  Every  branch  of 
knowledge  presents  instructive  examples  of  the  extent  to 
which  this  mode  of  reasoning  may  be  securely  carried. 
Newton,  from  having  observed  that  the  refractive  forces 
of  different  bodies  follow  the  ratio  of  their  densities,  was 

"1  Locke  on  the  Human  Understanding,  b.  iv,  ch.  xv,  s.  5. 
•>  2  Stewart's  Elements,  tit  supra,  ch.  ii,  s.  iv. 


NATURE   OF    THE    ASSURANCE    PRODUCED.  13 

led  to  predict  the  combustibility  of  the  diamond  ages 
before  the  mechanical  aids  of  science  were  capable 
of  verifying  his  prediction ;  nor  is  the  sagacity  of  the 
conjecture  the  less  striking,  because  this  correspondence 
has  been  discovered  not  to  be  without  exception.  The 
scientific  observer,  from  the  inspection  of  shapeless 
fragments,  which  halve  mouldered  under  the  suns  and 
storms  of  ages,  constructs  a  model  of  the  original  in  its 
primitive  magnificence  and  symmetry.  A  profound 
knowledge  of  comparative  anatomy  enabled  the  immoi- 
tal  Cuvier,  from  a  single  fossil  bone,  to  describe  the 
structure  and  habits  of  many  of  the  extinct  animals  of 
the  antediluvian  world.  In  like  manner  an  enlightened 
knowledge  of  human  nature  often  enables  us,  on  the 
foundation  of  apparently  slight  circumstances,  to  follow 
the  tortuous  windings  of  crime,  and  ultimately  to  dis- 
cover its  guilty  author,  as  infallibly  as  the  hunter  is 
conducted  by  the  track  to  his  game. 

The  following  pertinent  and  instructive  observations 
may  advantageously  close  this  part  of  our  subject,  com- 
prehending, as  they  do,  everything  which  can  be  usefully 
adduced  in  illustration  of  the  necessity  and  value  of  the 
principle  of  analogy :  "  In  all  reasonings  concerning 
human  life  we  are  obliged  to  depend  on  analogy,  if  it 
were  only  from  that  uncertainty,  and  almost  suspension 
of  judgment,  with  which  we  must  hold  our  conclusions. 
We  can  seldom  obtain  that  number  of  instances  which  is 
requisite  here  to  establish  an  inference  indisputably.  The 
conduct  of  persons  or  of  parties  may  have  been  attended 
by  certain  antecedents  and  certain  results  in  the  examples 
before  us ;  still  the  state  of  the  case  may  be  owing,  not 
so  much  to  that  conduct,  as  to  other  causes,  which  are 
shut  out  of  our  view,  when  our  attention  is  fixed  on  the 
particular  examples  adduced  for  the  purpose  of  the  in- 


14  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

ference.  We  must  thus  be  strictly  on  our  guard  against 
transferring  to  other  cases  anything  merely  contingent 
and  peculiar  to  the  instances  on  which  our  reasoning  is 
founded.  And  this  is  what  analogical  reasoning  requires 
and  enables  us  to  do.  If  rightly  pursued  it  is  employed 
at  once  both  in  generalizing  and  discriminating ;  in  the 
acute  perception  at  once  of  points  of  agreement  and 
points  of  difference.  The  acme  of  the  philosophical  power 
is  displayed  in  the  perfect  co-operation  of  these  two  oppo- 
site proceedings.  We  must  study  to  combine  in  such  a 
way  as  not  to  merge  real  differences;  and  so  to  distinguish 
as  not  to  divert  the  eye  from  the  real  correspondence."  * 
It  may  be  objected,  that  the  minds  of  men  are  so  dif- 
ferently constituted,  and  so  much  influenced  by  diff'er- 
ences  of  experience  and  culture,  that  the  same  evidence 
may  produce  in  different  individuals  very  different  degrees 
of  belief;  that  one  man  may  unhesitatingly  believe  an 
alleged  fact,  upon  evidence  which  will  not  in  any  degree 
sway  the  mind  of  another.  It  must  be  admitted  that 
moral  certainty  is  not  the  same  fixed  and  unvarying 
standard,  alike  in  every  individual ;  that  skepticism  and 
credulity  are  modifications  of  the  same  principle,  and  that 
to  a  certain  extent  this  objection  is  grounded  in  fact;  but 
nevertheless,  the  psychological  considerations  which  it 
involves  have  but  little  alliance  with  the  present  subject; 
the  argument,  if  pushed  to  its  extreme,  would  go  to  in- 
troduce universal  doubt  and  distrust,  and  to  destroy  all 
confidence  in  human  judgment  founded  upon  moral  evi- 
dence. It  is  as  impossible  to  reduce  men's  minds  to  the 
same  standard,  as  it  is  to  bring  their  bodies  to  the  same 
dimensions ;  but  in  the  one  case,  as  well  as  in  the  other, 
there  is  a  general  agreement  and  similarity,  any  wide 
departure    from    which   is   instantly   perceived   to   be 

"  Ilaiiijulcn's  Lectures,  ut  supra,  178. 


NATURE    OF    THE    ASSURANCE    PRODUCED.  15 

eccentric  and  extravagant.  The  question  is,  not  what 
may  be  the  possible  effect  of  evidence  upon  imnds  pecul- 
iarly  constructed,  but  what  ought  to  be  its  fair  result 
with  men,  such  as  the  generality  of  civilized  men  are. 

It  is  of  no  moment  in  relation  to  criminal  jurispru- 
dence, that  exact  expression  cannot  be  given  to  the  in- 
ferior degrees  of  belief.  The  doctrine  of  chances,  and 
nice  calculations  of  probabilities,  cannot,  except  in  a  few 
cases,  and  then  only  in  a  very  general  and  abstract  way, 
be  applied  to  human  actions,  which  are  essentially  un- 
like, and  dependent  upon  peculiarities  of  persons  and 
circumstances  which  render  it  impossible  to  assign  to 
them  a  precise  value,  or  to  compare  them  with  a  common 
numeral  standard ;  nor  are  they  capable  in  any  degree, 
or  under  any  circumstances,  of  being  applied  to  actions 
which  infer  legal  responsibility.  In  the  common  affairs 
of  life  men  are  frequently  obliged,  from  necessity  and 
duty,  to  act  upon  the  lowest  degree  of  belief;  and,  as 
Mr.  Locke  justly  observes,  "  He  that  will  not  stir  till  he 
infallibly  knows  the  business  he  goes  about  will  succeed, 
will  have  little  else  to  do  but  to  sit  still  and  perish."  * 
But  in  such  cases  our  judgments  commonly  concern  our- 
selves, and  our  own  motives,  duties,  and  interests  ;  while 
in  the  administration  of  penal  justice  the  magistrate  is 
called  upon  to  apply  to  the  conduct  of  others  a  rule  of 
action  applicable  to  a  given  state  of  facts,  where  external 
and  sometimes  ambiguous  indicia  alone  constitute  the 
grounds  of  judgment.  In  the  application  of  every  such 
rule,  the  certainty  of  the  facts  is  presupposed,  and  is  its 
only  foundation  and  vindication ;  and  upon  any  lower 
degree  of  assurance,  its  application  would  be  arbitrary 
and  indefensible. 

»  Essay  on  the  Human  Understanding,  b.  iv,  ch.  .tiv,  s.  1. 


CIRCUMSTANTIAL  EVIDENC 


Section  1. 
essential   characteristics  of  circumstantial  evidence. 

The  epithets  direct  and  indirect,  or  circumstantial, 
as  applied  to  testimonial  evidence,  have  been  sanctioned 
by  such  long  and  general  use,  that  it  might  appear  pre- 
sumptuous to  question  their  accuracy,  as  it  would  per- 
haps be  impracticable  to  substitute  others  more  appro- 
priate. But  assuredly  these  terms  have  frequently  been 
very  indiscriminately  applied,  and  the  misuse  of  them 
has  occasionally  been  the  cause  of  lamentable  results ;  it 
is,  therefore,  essential  accurately  to  discriminate  the 
proper  application  of  them. 

On  a  superficial  view,  direct  and  indirect,  or  circum- 
stantial, would  appear  to  be  distinct  species  of  evidence ; 
whereas  these  words  denote  only  the  different  modes  in 
which  those  classes  of  evidentiary  facts  operate  to  pro- 
duce conviction.  Circumstantial  evidence  is  of  a  nature 
identically  the  same  with  direct  evidence ;  the  distinction 
is,  that  by  direct  evidence  is  intended  evidence  which 
applies  directly  to  the  fact  which  forms  the  subject  of 
inquiry,  the  factum  probandum  ;  circumstantial  evidence 
is  equally  direct  in  its  nature,  but,  as  its  name  imports, 
it  is  direct  evidence  of  a  minor  fact  or  facts,  incidental 


CHARACTERISTICS   OF   CIRCUMSTANTIAL    EVIDEXCE.         17 

to  or  usually  connected  with  some  other  fact  as  its  acci- 
dent, and  from  which  such  other  fact  is  therefore  inferred. 
A  witness  deposes  that  he  saw  A.  inflict  on  B.  a  wound, 
of  which  he  instantly  died ;  this  is  a  case  of  direct  evi- 
dence. B.  dies  of  poison ;  A.  is  proved  to  have  had  mal- 
ice and  uttered  threats  against  him,  and  to  have  clandes- 
tinely purchased  poison,  wrapped  in  a  particular  paper, 
and  of  the  same  kind  as  that  which  has  caused  death  ; 
the  paper  is  found  in  his  secret  drawer,  and  the  poison 
gone.  The  evidence  of  these  facts  is  direct ;  the  facts 
themselves  are  indirect  and  circumstantial,  as  applicable 
to  the  inquiry  whether  a  murder  has  been  committed, 
and  whether  it  was  committed  by  A. 

So  rapid  are  our  intellectual  processes  that  it  is  fre- 
quently difficult,  and  even  impossible,  to  trace  the  con- 
nection between  an  act  of  the  judgment  and  the  train 
of  reasoning  of  which  it  is  the  result ;  and  the  one  ap- 
pears to  succeed  the  other  instantaneously,  by  a  kind  of 
necessity.  This  fact  obtains  most  commonly  in  respect 
of  matters  which  have  been  frequently  the  objects  of 
mental  association. 

In  matters  of  direct  testimony,  if  credence  be  given 
to  the  relators,  the  act  of  hearing  and  the  act  of  belief, 
though  really  not  so,  seem  to  be  contemporaneous.  But 
the  case  is  very  different  when  we  have  to  determine 
upon  circumstantial  evidence,  the  judgment  in  respect 
of  which  is  essentially  inferential  There  is  no  apparent 
necessary  connection  between  the  facts  and  the  infer- 
ence ;  the  facts  may  be  true,  and  the  inference  erroneous, 
and  it  is  only  by  comparison  with  the  results  of  obser- 
vation in  similar  or  analogous  circumstances,  that  we 
acquire  confidence  in  the  accuracy  of  our  conclusions. 

The  term  presumptive  is  frequently  used  as  synony- 


18  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

mous  with  circumstantial  evidence  ;  but  it  is  not  so 
used  with  strict  accuracy.  The  word  "presumption," 
ex  vi  termini,  imports  an  inference  from  facts ;  and  the 
adjunct  "  presumptive,"  as  applied  to  evidentiary  facts, 
implies  the  certainty  of  some  relation  between  the  facts 
and  the  inference.  Circumstances  generally,  but  not 
necessarily,  lead  to  particular  inferences  ;  for  the  facts 
may  be  indisputable,  and  yet  their  relation  to  the  prin- 
cipal fact  may  be  only  apparent,  and  not  real ;  and  even 
when  the  connection  is  real,  the  deduction  may  be  erro- 
neous. Circumstantial  and  presumptive  evidence  differ, 
therefore,  as  genus  and  species. 

The  force  and  effect  of  circumstantial  evidence  depend 
upon  its  incompatibility  with,  and  incapability  of,  ex- 
jjlanation  or  solution  upon  any  other  supposition  than 
that  pf  the  truth  of  the  fact  which  it  is  adduced  to 
prove ;  the  mode  of  argument  resembling  the  method  of 
demonstration  by  the  rediictio  ad  ahsurdum.  But  this 
is  a  part  of  the  subject  which  will  more  appropriately 
admit  of  amplification  in  a  future  part  of  this  essay. 

Section  2. 

presumptions. 

It  is  essential  to  a  just  view  of  our  subject  that  our  no- 
tions of  the  nature  of  presumptions  should  be  precise  and 
distinct.  A  presumption  is  a  probable  consequence,  drawn 
from  facts  (either  certain  or  proved  by  direct  testimony) , 
as  to  the  truth  of  a  fact  alleged,  but  of  which  there  is  no 
direct  proof.  It  follows,  therefore,  that  a  presumption  of 
any  fact  is  an  inference  of  that  fact  from  others  that  are 
known."    The  word  "presumption,"  therefore,  inherently 

•'  Per  Abbott,  C.  J.,  in  Rex  v.  Burdett,  4  B.  and  Aid.,  161. 


PRESUMPTIONS.  1 9 

imports  an  act  of  reasoning,  a  conclusion  of  the  judg- 
ment; and  it  is  applied  to  denote  such  facts  or  moral 
phenomena  as  from  experience  we  know  to  be  invariably 
or  commonly  connected  with  some  other  related  fact.  A 
wounded  and  bleeding  body  is  discovered ;  it  has  been 
plundered ;  wide  and  deep  footmarks  are  found  in  a  direc- 
tion proceeding  from  the  body ;  or  a  person  is  seen  run- 
ning from  the  spot.  In  the  one  case  are  observed  marks 
of  flight,  in  the  other  is  seen  the  fugitive,  and  we  know 
that  guilt  naturally  endeavors  to  escape  detection.  These 
circumstances  induce  the  presumption  that  crime  has 
been  committed ;  the  presumption  is  a  conclusion  or  con- 
sequence from  the  circumstances.  The  antecedent  cir- 
cumstances, therefore,  are  one  thing,  the  presumption 
from  them  another  and  different  one.  Of  presumptions 
afforded  by  moral  phenomena,  a  memorable  instance  is 
recorded  in  the  Judgment  of  Solomon,  whose  knowledge 
of  the  all-powerful  force  of  maternal  love  supplied  him 
with  an  infallible  criterion  of  truth.*  So,  when  Aristip- 
pus,  who  had  been  cast  away  on  an  unknown  shore,  saw 
certain  geometrical  figures  traced  in  the  sand,  his  infer- 
ence that  the  country  was  inhabited  by  a  people  convers- 
ant with  mathematics  was  a  presumption  of  the  same 
nature.^  It  is  evident  that  this  kind  of  reasoning  is  not 
peculiar  to  legal  science,  but  is  a  logical  process  common 
to  every  subject  of  human  investigation. 

All  presumptions  connected  with  human  conduct  are 
inferences  founded  upon  the  observation  of  man's  nature 
as  a  sentient  being  and  a  moral  agent;  and  they  are  neces- 
sarily infinite  in  variety  and  number,  differing  accord- 
ing to  the  diversities  of  individual  character,  and  to  the 

a  Domat's  Civil  Law,  b.  iii,  tit.  6. 

^  Gambier's  Introduction  to  the  Study  of  Moral  Ev.,  55. 


20  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

innumerable  and  ever-changing  situations  and  emergen- 
cies in  which  men  are  placed.  Hence  the  importance  of 
a  knowledge  of  the  instincts,  affections,  desires,  and  moral 
capabilities  of  our  nature,  to  the  correct  deduction  of  such 
presumptions  as  are  founded  upon  them,  and  which  are 
therefore  called  natural  presumptions.'' 

Legal  presumptions  are  founded  upon  natural  pre- 
sumptions, being  such  natural  presumptions  as  are  con- 
nected with  human  actions,  so  far  as  they  are  authori- 
tatively constituted  by  the  legislator  or  deduced  by  the 
magistrate. 

The  civilians  divided  legal  presumptions  into  two 
classes,  namely,  prcesumptiones  Juris  et  dej'ure,  and  prce- 
sumptiones  Juris  simply. 

Presumptions  of  the  former  class  were  such  as  were 
considered  to  be  founded  upon  the  connection  and  relation 
so  intimate  and  certain  between  the  fact  known  and  the 
fact  sought  that  the  latter  was  deemed  to  be  an  infallible 
consequence  from  the  existence  of  the  first.  Such  pre- 
sumptions were  called  prcesumptiones  Juris,  because  their 
force  and  authority  were  recognized  by  the  law ;  and  de 
Jure,  because  they  were  made  the  foundation  of  certain 
specific  legal  consequences,''  against  which  no  argument 
or  evidence  was  admissible  ;  while  prcesumptiones  Juris 
simply,  though  deduced  from  facts  characteristic  of  truth, 
were  always  subject  to  be  overthrown  by  proof  of  facts 
leading  to  a  contrary  presumption. 

In  matters  of  property,  the  principal  modifications  of 
which  are  matters  of  positive  institution,  the  laws  of 
every  country  have  created  artificial  legal  presumptions, 
grounded  upon  reasons  of  policy  and  convenience,  to  pre- 

a  3  Maseardus  De  Probationibus,  Conclusio  mccxxvi. 
"  Menochius  De  Prassumptionibus,  lib.  i,  q.  3. 


PRESUMPTIONS.  21 

vent  social  discord,  and  to  fortify  private  right.  The 
justice  and  policy  of  such  regulations  have  been  thus 
eloquently  enforced :  "Civil  cases  regard  property;  now, 
although  property  itself  is  not,  yet  almost  everything 
concerning  property,  and  all  its  modifications,  is,  of  arti- 
ficial contrivance.  The  rules  concerning  it  become  more 
positive,  as  connected  with  positive  institutions.  The 
legislator,  therefore,  always,  the  jurist  frequently,  may 
ordain  certain  methods,  by  which  alone  they  will  suffer 
such  matters  to  be  known  and  established ;  because  their 
very  essence,  for  the  greater  part,  depends  on  the  arbi- 
trary conventions  of  men.  Men  act  on  them  with  all 
the  power  of  a  creator  over  his  creatures.  They  make 
fictions  of  law  and  presumptions  of  law  {prcesumptiones 
juris  et  dejure)  according  to  their  ideas  of  utility,  and 
against  those  fictions,  and  against  presumptions  so  cre- 
ated, they  do  and  may  reject  all  evidence."  * 

But  in  penal  jurisprudence,  man  as  a  physical  being 
and  a  moral  agent,  such  as  he  is  by  natural  constitution, 
and  by  the  influences  of  social  condition,  is  the  subject  of 
inquiry.  Punitive  justice  is  applied  to  injurious  actions 
proceeding  from  malignity  of  purpose,  and  not  to  physi- 
cal actions  merely.  It  has  been  said  with  great  force  and 
accuracy  that  "where  the  subject  is  of  a  physical  nature, 
or  of  a  moral  nature,  independent  of  their  conventions, 
men  have.no  other  reasonable  authority  than  to  register 
and  digest  the  results  of  experience  and  observation ;" 
and  that  "  the  presumptions  which  belong  to  criminal 
cases  are  those  natural  and  popular  presumptions  which 
are  only  observations  turned  into  maxims,  like  adages 
and  apophthegms,  and  are  admitted  (when  their  grounds 

»  2  Burke's  Works,  623;  ed.  1834,  by  Holdsworth  and  Ballj  3  Mascardus,  ut  «u- 
pra,  Conclusio  Mccxxviii. 


22  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

are  established)  in  the  place  of  proof,  where  better  is 
wanting,  but  are  to  be  always  overturned  by  counter- 
proof."  ^  Hence,  therefore,  a  third  class  of  presumptions, 
which  the  civilians  called  prcesumptiones  Jiominis,  because 
they  were  inferred  by  the  sagacity  and  discretion  of  the 
judge  from  the  facts  judicially  before  him.  Such  pre- 
sumptions are  in  fact  natural  presumptions  simply,  de- 
riving their  force  from  that  relation  and  connection  which 
are  recognized  and  acknowledged  by  the  unsophisti- 
cated reason  of  all  observing  and  reflecting  men. 

Presumptions  of  every  kind,  to  be  just,  must  be  dic- 
tated by  nature  and  reason ;  and,  except  under  special 
and  peculiar  circumstances,  it  is  impossible,,  without  a  de- 
reliction of  every  rational  principle,  to  lay  down  positive 
rules  of  presumption,  where  every  case  must  of  necessity 
be  connected  with  peculiarities  of  personal  disposition  and 
of  concomitant  circumstances,  and  be  therefore  irredu- 
cible to  any  fixed  principle.  In  criminal  jurisprudence, 
therefore,  arbitrary  presumptions  should  be  sparingly  ad- 
mitted; and  even  when  they  are  so,  they  occasionally  work 
injustice.  On  the  conviction  of  the  captain  of  a  schooner 
for  having  naval  stores  in  his  possession,  Mr.  Baron 
Alderson,  in  passing  sentence  of  six  months'  imprison- 
ment, said  that  he  was  satisfied  he  had  become  possessed 
of  the  stores  in  ignorance  of  the  Act  of  Parliament,  but 
that  it  was  of  the  greatest  importance  that  its  provisions 
should  be  generally  known,  and  expressed  his  hope  that 
his  good  character  would  operate  to  obtain  a  mitigation 
of  the  sentence.''  It  would  be  as  unreasonable  to  sub- 
ject human  actions  to  unbending  rules  of  presumption,  as 
to  prescribe  to  the  commander  of  a  ship  inflexible  rules 

»  2  Burke's  Works,  m<  supra,  623;  3  Mascardus,  ut  siqyra,  Conclusio  mccxxviii. 
•»  Reg.  V.  Trannock,  Liverpool  Winter  Ass.,  1848. 


PRESUMPTIONS.  23 

for  his  conduct  without  any  latitude  of  discretion  in  the 
unforeseen  and  innumerable  accidents  and  contingencies 
of  the  tempest  and  the  ocean.  Where  a  peremptory  pre- 
sumption of  legal  guilt  is  not  pernicious  and  unjust,  it  is 
in  general  at  least  unnecessary ;  for,  if  it  be  a  fair  conclu- 
sion of  the  reason,  it  will  be  adopted  by  the  tribunals, 
without  the  mandate  of  the  legislature.  There  may,  no 
doubt,  be  cases  where  the  proAdsions  of  the  law  are  pe- 
culiarly liable  to  be  defeated  or  evaded  by  subtle  contri- 
vances and  shifts  most  difficult  of  prevention.  But,  even 
in  such  cases,  legal  presumptions  can  only  be  justifiable 
where  the  proximate  substituted  fact  of  presumption  is 
clearly  of  a  guilty  character  and  tendency  per  se,  and 
would  afford,  even  in  the  absence  of  legal  enactment,  a 
strong  moral  ground  of  presumption  indicative  of  the 
particular  act  of  criminality  intended  to  be  repressed ;  * 
and  however  explicit  and  conclusive  may  be  the  language 
of  the  legislature,  the  tribunals  must  by  an  inherent  ne- 
cessity give  effect  to  all  such  surrounding  circumstances 
as  tend  to  repel  or  modify  the  particular  presumption,  or 
to  create  a  counter-presumption  of  equal  or  superior 
weight.'^  It  is  impossible  to  recall  without  horror  the  san- 
guinary law "  which  made  the  concealment  of  the  death  of 
an  illegitimate  child  by  its  mother  conclusive  evidence  of 
murder,  unless  she  could  make  proof,  by  one  witness  at 
least,  that  the  child  was  born  dead,  and  which  too  long  dis- 
graced our  statute  book ;  whereas  in  truth  it  affords  no 
ground  to  warrant  such  a  conclusion,  since  it  is  more  nat- 
ural and  more  just  to  attribute  the  suppression  to  a  desii'e 
to  conceal  female  shame,  and  to  escape  open  dishonor. 
As  evidentiary  circumstances  and  their  combinations 

»  Traite  des  Preuves,  par  Bonnier,  702;  3d  ed. 

b  See  h\fra,  s.  8.  <=  Stat.  21  Jac.  I.  c.  27. 


24  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

are  infinitely  varied,  so  also  are  the  presumptions  to  which 
they  lead ;  and  a  complete  enumeration  would  in  either 
case  be  impracticable.  The  writers  on  the  civil  law  have 
made  a  comprehensive  and  instructive  collection  of  facts 
and  inferential  conclusions,  in  relation  to  a  vast  number 
of  actions  connected  with  legal  accountability.  But  many 
things  advanced  by  those  laborious  and  elaborate  authors 
have  relation  to  a  state  of  society,  and  to  legal  institutions 
and  modes  of  procedure,  wholly  dissimilar  from  our  own. 
The  law  of  England  admits  of  no  such  thing  as  the  semi- 
plena  prohatio,  founded  on  circumstances  of  conjecture 
and  suspicion  only,  which,  in  many  countries  governed 
by  the  Roman  law,  was  held  to  warrant  the  infliction  of 
torture  with  a  view  to  compel  admissions  and  complete 
imperfect  proof.  Hence  the  total  inapplicability  with  us 
of  the  subdivisions  of  indicia,  signa,  adminicula,  conjec- 
turw,  duUa,  and  suspiciones,  which  are  found  in  the  writers 
of  other  countries  whose  jurisprudence  is  founded  upon 
that  of  Rome,  subdivisions  which  appear  to  be  arbitrary, 
vague,  and  useless.  But  it  is  manifest  that,  under  legal 
institutions  which  admitted  of  compulsory  self-accusation, 
in  order  to  complete  proof  insufficient  and  inconclusive  in 
itself,  and  where  the  laws  were  administered  by  a  single 
judge,  without  the  salutary  restraints  of  publicity  and 
popular  observation,  an  accurate  and  elaborate  record  of 
the  multitudinous  actions  and  occurrences  which  had 
been  submitted  to  the  criminal  tribunals  operated  as  an 
important  limitation  upon  the  tyranny  and  inconstancy 
of  judicial  discretion. 

It  is  calculated  to  excite  surprise  that  arbitrary  tech- 
nical rules  should  ever  have  been  adopted  for  estimating 
the  force  and  effect  of  particular  facts  as  leading  to  pre- 
sumptions ;  a  matter  purely  one  of  reason  and  logic.    It 


PRESUMPTIONS.  2;j 

is  probable,  nevertheless,  that  the  attempt  originated  in 
the  desire  to  escape  a  still  greater  absurdity.  "  TcHtia 
unus,  testis  mdius"  "iinus  testis  non  est  audiendus"  were 
fundamental  maxims  of  the  text-writers  on  the  Civil  ;in<l 
Canon  Laws,  and  of  most  ancient  codes,*  as  they  still 
are  of  judicial  procedure  in  many  parts  of  Europe.'' 
Since  presumptions  have  not  the  same  force  as  direct 
evidence,  it  was  hence  supposed  to  be  required,  as  a 
logical  sequence,  that  there  should  be  a  concurrence  of 
three  presumptions,  as  the  imaginary  equivalent  for  the 
testimony  of  two  ocular  witnesses,  where  such  testimony 
was  not  to  be  had.  It  is  discreditable  to  the  state  of 
moral  and  legal  science  that  these  absurd  and  antiquated 
notions,  worthy  of  the  darkest  ages  of  society,  should 
have  been  countenanced  and  perpetuated  in  the  legis- 
lation of  several  of  the  nations  of  Europe  even  to  the 
present  day.''  It  is  obvious  that  a  single  presumption, 
may  be  conclusive,  and  that  an  accumulation  of  many 
presumptions  may  be  of  but  little  weight.  The  simplest 
and  most  elementary  dictates  of  common  sense  require 
that  presumptions  should  not  be  numbered  merely,  but 
that  they  should  be  weighed  according  to  the  principles 
which  are  applied  in  estimating  the  effect  of  testimonial 
evidence. 

The  prevalence  of  these  fallacious  methods  of  judging 
of  the  force  of  evidence  explains  the  foundation  of  the 
practice,  abhorrent  to  every  principle  of  judicial  integ- 
rity, and  which  still  extensively  prevails,  of  condemning 
to  a  minor  punishment  persons  who  may  be  innocent, 

*  Deut.  xvii.  6,  7,  xix.  15 ;  Numb.  xxxv.  30 ;  4  Michaolis  on  the  Laws  of  Moses, 
by  Smith,  Art.  ccxcix. 

"  Code  Hollandais,  1838;  Code  Penal  d'Autiiche;  Code  de  Baviere,  and  many 
other  German  Codes. 

"  Code  Criminel  de  Prusse,  1805  ;  Code  de  Procedure  Criminelle  d'Autrichc,  1853  ; 
ditto  de  Modene,  1855. 


26  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

but  against  whom  there  may  exist  apparent  grounds  of 
strong  presumption,  though  not  that  exact  kind  and 
amount  of  proof  which  the  rules  of  evidence  arbitrarily 
and  unreasonably  require  ;  as  if  a  middle  term  in  crimi- 
nal jurisprudence  were  not  an  absurdity  and  self-contra- 
dictory.'' An  eminent  foreign  jurist  well  remarks,  that 
"Jamais  il  n'y  a  eu  plus  de  condamnations  injustes  que' 
sous  I'empire  d'une  jurisprudence  qui  defendait  de  pro- 
noncer  la  peine  capitale  sur  de  simples  indices."  ** 

The  unreasonable  stress  which,  in  many  countries 
whose  criminal  jDrocedure  is  derived  from  the  Civil  Law, 
is  laid  upon  the  confession  of  the  accused,  and  the  un- 
warrantable means  which  are  resorted  to  in  order  to 
obtain  it,  are  the  natural  results  of  arbitrary  and  un- 
philosophical  rules  of  evidence,  which  necessarily  have 
the  effect  of  closing  many  of  the  channels  of  truth  ;  and 
frequently  render  it  so  difficult  to  obtain  full  legal  proof 
of  crime,  that  a  late  eminent  jurist  and  criminal  judge 
declared  that  unless  a  man  chose  to  perpetrate  his 
crimes  in  public,  or  to  confess  them,  he  need  not  fear  a 
conviction.'^ 

Attempts  have  been  made  by  our  own  juridical  writers, 
but  with  no  useful  results,  to  classify  presumptions  in  a 
more  general  way  under  terms  expressive  of  their  effect, 

as  VIOLENT   OR   NECESSARY,  PROBABLE  Or  GRAVE  and  SLIGHT.*^ 

But  this  arrangement  is  specious   and  fanciful  rather 

*  See  several  such  cases  in  Narratives  of  Remarkable  Criminal  Trials,  translated 
from  the  German  of  Feuerbach,  by  Lady  Duff  Gordon.  At  Berne,  in  1842,  a  man 
accused  of  murder  by  poisoning  was  sentenced  to  sis  years'  imprisonment,  as 
vekementement  suspect. 

^  Bonnier,  ut  supra,  &7'I. 

"  Ed.  Rev.  Ixxxii,  330 ;  and  see  in  Christison  on  Poisons,  61,  ed.  2,  a  ease  where 
the  crime  of  murder  by  poisoning  was  considered  as  not  fully  proved  because  the 
prisoner  would  not  confess,  but  on  account  of  the  probability  of  his  guilt  he  was 
condemned  to  fifteen  years'  imprisonment. 

*  Bentham's  Rationale  of  Judicial  Evidence,  b.  i,  c.  vi ;  Coke  on  Litt.,  6  b. ;  4 
Blackstone's  Comm.,  353. 


PRESUMPTIONS. 


97 


than  practical  and  real;  nor  is  it  entirely  nccuiate, 
since  a  presumption  may  be  violent  and  yet  not  neces- 
sary.* A  more  precise  and  intelligible  classification 
of  presumptions  is  into  violent  or  strong,  and  slight. 
But  it  is  impossible  thus  to  classify  more  than  a  com- 
paratively few  of  the  infinite  variety  of  circumstances 
connected  with  human  actions  and  motives,  or  to  Iny 
down  rules  for  distinguishing  presumptions  of  one  of 
these  classes  from  those  of  another ;  and  the  terms 
of  designation,  from  the  inherent  imperfections  of  lan- 
guage, although  not  wholly  destitute  of  utility,  are 
unavoidably  defective  in  precision.  We  can  therefore 
only  usefully  apply  these  epithets  as  relative  terms ; 
and  the  effect  of  particular  facts  must  of  necessity  de- 
pend upon  the  reality  and  closeness  of  the  connection 
between  the  principal  and  secondary  facts,  and  upon  a 
variety  of  considerations  peculiar  to  each  individual  case, 
and  can  no  more  be  predicated  than  the  boundaries  can 
be  defined  of  the  separate  colors  which  form  the  solar 
bow. 

It  is  convenient,  and  may  be  advantageous  even,  in 
order  to  obtain  a  comprehensive  view  of  the  tendencies 
and  effect  of  a  number  of  circumstances,  to  group  tliem 
together  in  their  chronological  relation  to  tlie  factum 
2)rohandum,  as  antecedent,  concomitant,  and  subsequent  ; 
but  to  require  the  concurrence  of  these  several  kinds  of 
presumption,  as  is  the  case  in  the  new  criminal  code  of 
Bavaria,  is  an  outrage  upon  all  legal  and  philosophical 
principle.'' 


*  See  Menochius,  ut  supra,  lib.  1,  q.  3,  nos.  1,  2,  3;  Essai  des  Preuves,  par  Gabriel, 
373 ;  Best  on  Presumptions,  40. 

"  Bonnier,  ut  supra,  683 ;  Traits  de  la  Preuve,  par  Mittermaier  (traduit  par 
Alexandre),  c.  61. 


28  WILLS   ON   CIRCUMSTANTIAL    EVIDENCE. 

By  various  statutes,  many  acts  are  made  legal  pre- 
sumptions of  guilt,  and  the  onus  of  proving  any  matter 
of  defence  is  expressly  cast  upon  the  party  accused ; 
but,  with  these  exceptions,  the  truth  of  every  accusa- 
tion is  determined  by  the  voice  of  a  jury,  upon  consider- 
ation of  the  intrinsic  and  independent  merits  of  each 
particular  case,  acting  upon  those  principles  of  reason 
and  judgment  by  which  mankind  are  governed  in  all 
other  cases  where  the  same  intellectual  process  is  called 
into  exercise,  unfettered  by  any  obligatory  and  inflexible 
presumptions.  The  inexpediency  and  inefficacy  of  posi- 
tive presumptions,  as  indications  of  the  criminality  of 
intention,  in  which  alone  consists  the  essence  of  legal 
guilt,  have  been  thus  exposed  with  equal  force  and  ele- 
gance by  the  hand  of  a  master :  "  The  connection  of 
the  intention  and  the  circumstances  is  plainly  of  such  a 
nature  as  more  to  depend  on  the  sagacity  of  the  observer 
than  on  the  excellency  of  any  rule.  The  pains  taken 
by  the  civilians  on  that  subject  have  not  been  very 
fruitful ;  and  the  English  law-writers  have,  perhaps  as 
wisely,  in  a  manner  abandoned  the  pursuit.  In  truth, 
it  seems  a  wild  attempt  to  lay  down  any  rule  for  the 
proof  of  intention  by  circumstantial  evidence."  * 

Section  3. 

relative  value  of  direct  and  indirect  or  circum- 
stantial evidence. 

The  foregoing  observations  naturally  lead  to  a  com- 
parison of  the  relative  value  of  Direct  and  Indirect  or 
Circumstantial  Evidence;  an  inquiry  which  becomes  the 

•^  2  Burke's  Works,  ut  supra,  623. 


CIRCUMSTANTIAL    EVIDENCE.  29 

more  necessaiy,  on  account  of  some  novel  and  ques- 
tionable doctrines  which  have  received  countenance 
even  from  the  judgment  seat. 

The  best  writers,  ancient  and  modern,  on  the  subject 
of  evidence,  have  concurred  in  treating  circumstantial  as 
inferior  in  cogency  and  effect  to  direct  evidence ;  a  con- 
clusion which  seems  to  follow  necessarily  from  the  very 
nature  of  the  different  kinds  of  evidence.  But  language 
of  a  directly  contrary  import  has  been  so  often  used  by 
authorities  of  no  mean  note,  as  to  have  become  almost 
proverbial,  and  to  require  examination. 

It  has  been  said  that  "  circumstances  are  inflexible 
proofs ;  that  witnesses  may  be  mistaken  or  corrupted, 
but  things  can  be  neither."  *  "  Circumstances,"  says 
Paley,  "cannot  lie."''  It  is  astonishing  that  sophisms 
like  these  should  have  passed  current  without  animad- 
version. The  "  circumstances "  are  assumed  to  be  in 
every  case  established  beyond  the  possibility  of  mistake  ; 
and  it  is  implied  that  a  circumstance  established  to  be 
true  possesses  some  mysterious  force  peculiar  to  facts  of 
a  certain  class.  Now  a  circumstance  is  neither  more  nor 
less  than  a  minor  fact,  and  it  may  be  admitted  of  all  facts 
that  they  cannot  lie ;  for  a  fact  cannot  at  the  same  time 
exist  and  not  exist :  so  that  in  truth  the  doctrine  is  merely 
the  expression  of  a  truism,  that  a  fact  is  a  fact.  It  may 
also  be  admitted  that  "circumstances  are  inflexible  proofs," 
but  assuredly  of  nothing  more  than  of  their  own  existence : 
so  that  this  assertion  is  only  a  repetition  of  the  same  truism 
in  different  terms.  It  seems  also  to  have  been  overlooked 
that  circumstances  and  facts  of  every  kind  must  be  proved 
by  human  testimony ;  that  although  "  circumstances  can- 

a  Burnett's  C.  L.  of  Scotland,  523. 

•>  Principles  of  Moral  and  Political  Philosophy,  b.  vi,  c.  ix. 


30  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

not  lie,"  the  narrators  of  them  may ;  that,  like  witnesses 
of  all  other  facts,  they  may  be  biassed  or  mistaken,  and 
that  the  facts,  even  if  indisputably  true,  may  lead  to 
erroneous  inference.  Thus  far,  then,  circumstantial  pos- 
sesses no  advantage  over  direct  evidence. 

A  distinguished  statesman  and  orator  has  advanced  in 
unqualified  terms  the  proposition,  supported,  he  alleges, 
by  the  learned,  that  "when  circumstantial  proof  is  in  its 
greatest  perfection,  that  is,  when  it  is  most  abundant  in 
circumstances,  it  is  much  superior  to  positive  proof."" 
Paley  has  said,  with  more  of  caution,  that  "a  concurrence 
of  well-authenticated  circumstances  composes  a  stronger 
ground  of  assurance  than  positive  testimony,  unconfirmed 
by  circumstances,  usually  affords."^  Mr.  Baron  Legge, 
upon  a  trial  for  murder,  told  the  jury  that  where  a  "  vio- 
lent presumption  necessarily  arises  from  circumstances, 
they  are  more  convincing  and  satisfactory  than  any  other 
kind  of  evidence,  lecause  facts  cannot  Her"  Mr.  Justice 
Buller,  in  his  charge  to  the  jury  in  Donellan's  case,  said 
"that  a  presumption  which  necessarily  arises  from  circum- 
stances is  very  often  more  convincing  and  more  satisfac- 
tory than  any  other  kind  of  evidence,  because  it  is  not 
within  the  reach  and  compass  of  human  abilities  to  invent 
a  train  of  circumstances  which  shall  be  so  connected  to- 
gether as  to  amount  to  a  proof  of  guilt,  without  aflPording 
opportunities  of  contradicting  a  great  part,  if  not  all,  of 
those  circumstances."'^ 

It  is  obvious  that  the  doctrine  laid  down  in  these  sev- 
eral passages  is  propounded  in  language  which  not  only 

»  2  Burke's  Works,  ut  supra,  624. 
•>  Moral  and  Political  Philosophy,  b.  vi,  c.  ix. 
0  Rex  V.  Blandy,  18  State  Trials,  1187. 

'^  tiurney's  Report  of  the  trial  of  John  Donollan,  Esq.,  for  murder  at  the  Assize  at 
Warwick,  March  30,  1781. 


CIRCUMSTANTIAL   EVIDENCE.  31 

does  not  accurately  state  the  question,  but  implies  a  fal- 
lacy, and  that  extreme  cases,  the  strongest  ones  of  cir- 
cumstantial and  the  weakest  of  positive  evidence,  have 
been  selected  for  the  illustration  and  support  of  a  general 
position.  "  A  presumption  which  necessarily  arises  from 
circumstances"  cannot  admit  of  dispute,  and  requires  no 
corroboration ;  but  then  it  cannot  in  fairness  be  con- 
trasted with  and  opposed  to  positive  testimony,  unless  of 
a  nature  equally  cogent  and  infallible.  If  evidence  be  so 
strong  as  necessarily  to  produce  certainty  and  conviction, 
it  matters  not  by  what  Jdnd  of  evidence  the  effect  is  pro- 
duced ;  and  the  intensity  of  the  proof  must  be  precisely 
the  same,  whether  the  evidence  be  direct  or  circumstan- 
tial. It  is  not  intended  to  deny  that  circumstantial  evi- 
dence affords  a  safe  and  satisfactory  ground  of  assurance 
and  belief;  nor  that  in  many  individual  instances  it 
may  be  superior  in  proving  power  to  other  individual 
cases  of  proof  by  direct  evidence.  But  a  judgment 
based  upon  circumstantial  evidence  cannot,  in  any 
case,  be  more  satisfactory  than  when  the  same  result 
is  produced  by  direct  evidence,  free  from  suspicion  of 
bias  or  mistake. 

Perhaps  no  single  circumstance  has  been  so  often  con- 
sidered as  certain  and  unequivocal  in  its  effect  as  the 
anno  domini  water  mark  usually  contained  in  the  fabric 
of  writing  paper ;  and  in  many  instances  it  has  led  to  the 
exposure  of  fraud  in  the  propounding  of  forged  as  genuine 
instruments.  But  it  is  beyond  any  doubt  (and  several 
instances  of  the  kind  have  recently  occurred)  that  issues 
of  paper  have  taken  place  bearing  the  water  mark  of  the 
year  succeeding  that  of  its  distribution,  a  striking  ex- 
emplification of  the  ftillacy  of  some  of  the  arguments 
which  have  been  remnrked  upon.     How  often  has  it  been 


32  WILLS    ON   CIRCUMSTANTIAL    EVIDENCE. 

iterated  in  such  cases  that  circumstances  are  inflexible 
facts,  and  that  facts  cannot  lie ! 

The  proper  effect  of  circumstantial  as  compared  with 
direct  evidence  was  thus  more  accurately  stated  by  Lord 
Chief  Baron  Macdonald  :  "  When  circumstances  connect 
themselves  closely  with  each  other,  when  they  form  a 
large  and  a  strong  body,  so  as  to  carry  conviction  to  the 
minds  of  a  jury,  it  may  be  proof  of  a  more  satisfactory 
sort  than  that  which  is  direct.  In  some  lamentable  in- 
stances it  has  been  known  that  a  short  stor^^  has  been  got 
by  heart  by  two  or  three  witnesses  ;  they  have  been  con- 
sistent with  themselves,  they  have  been  consistent  with 
each  other,  swearing  positively  to  a  fact,  which  fact  has 
turned  out  afterwards  not  to  be  true.  It  is  almost  impos- 
sible for  a  variety  of  witnesses,  speaking  to  a  variety  of 
circumstances,  so  to  concert  a  story  as  to  impose  upon 
a  jury  by  a  fabrication  of  that  sort,  so  that  .where  it  is 
cogent,  strong,  and  powerful,  where  the  witnesses  do  not 
contradict  each  other,  or  do  not  contradict  themselves,  it 
MAY  BE  evidence  more  satisfactory  than  even  direct  evi- 
dence ;  and  there  are  more  instances  than  one  where  that 
has  been  the  case."''  In  another  case  the  same  learned 
judge  said,  "  Where  the  proof  arises  from  the  irresistible 
force  of  a  number  of  circumstances  which  we  cannot 
conceive  to  be  fraudulently  brought  together  to  bear  upon 
one  point,  that  is  less  fallible  than  under  some  circum- 
stances direct  evidence  may  be."  *' 

But,  in  truth,  direct  and  circumstantial  evidence  ought 
not  to  be  placed  in  contrast,  since  they  are  not  mutually 
opposed  ;  for  evidence  of  a  circumstantial  and  secondary 

»  Rex  V.  Patch,  Surrey  Spring  Assizes,  1806. 

•>  Rex  V.  Smith,  for  arson,  Old  Bailey,  June  15,  1813.     Short-hand  Report  by 
Gurney. 


CIRCUMSTANTIAL   EVIDENCE.  33 

nature  can  never  be  justifiably  resorted  to,  except  where 
evidence  of  a  direct  and,  therefore,  of  a  superior  nature 
is  unattainable. 

The  argument  founded  upon  the  abundance  of  the 
circumstances,  and\the  consequent  opportunities  of  con- 
tradiction which  they  afford,  belongs  to  another  part  of 
the  subject.  While  each  of  these  incidents  adds  greatly 
to  the  probative  force  of  circumstantial  evidence  in  jpar- 
timdar  cases,  they  have  clearly  no  connection  with  an 
inquiry  into  the  value  of  circumstantial  evidence  in  the 
abstract.  However  numerous  may  be  the  independent 
circumstances  to  which  the  witnesses  depose,  the  result 
cannot  be  of  a  different  kind  from,  or  superior  to,  that 
strong  moral  assurance  which  is  the  consequence  of 
satisfactory  proof  by  direct  testimony,  and  for  which,  if 
such  proof  be  attainable,  every  tribunal,  every  reason- 
able mind  would  reject  any  attempt  to  substitute  indirect 
or  circumstantial  evidence,  as  inadmissible,  and  as  afford- 
ing the  strongest  reason  for  suspicion  and  disbelief. 

It  has  been  said  that  "  though  in  most  cases  of  circum- 
stantial evidence  there  be  a  'possibility  that  the  prisoner 
may  be  innocent,  the  same  often  holds  in  cases  of  direct 
proof,  where  witnesses  may  err  as  to  identity  of  person, 
or  corruptly  falsify,  for  reasons  that  are  at  the  time  un- 
known." '"^  This  observation  is  unquestioijably  true. 
Even  the  testimony  of  the  senses,  though  it  affords  the 
safest  ground  of  moral  assurance,  cannot  be  implicitly 
depended  upon,  even  where  the  veracity  of  the  witnesses 
is  above  all  suspicion.  An  eminent  barrister,  a  gentle- 
man of  acute  mind  and  strong  understanding,  swore  posi- 
tively to  the  persons  of  two  men,  whom  he  charged  with 
robbing  him  in  the  open  daylight.     But  it  was  proved 

»  Burnet  on  the  0.  L.  of  Scotlan.l,  524. 


34  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

by  conclusive  evidence  that  the  men  on  trial  were,  at 
the  time  of  the  robbery,  at  so  remote  a  distance  from 
the  spot  that  the  thing  was  impossible.  The  consequence 
was  that  they  were  acquitted,  and  some  time  afterwards 
the  robbers  were  taken,  and  the  articles  stolen  found 
upon  them.  The  prosecutor,  on  seeing  these  men,  can- 
didly acknowledged  his  mistake,  and  it  is  said  gave  a 
recompense  to  the  persons  he  prosecuted,  and  who  so 
narrowly  escaped  conviction."  It  is  probable  that  he 
was  deceived  by  the  broad  glare  of  sunlight,  but  there 
can  be  no  doubt  of  the  sincerity  of  his  impressions. 

Many  similar  instances  are  upon  record  of  the  falli- 
bility of  human  testimony,  even  as  to  matters  supposed 
to  be  grounded  upon  the  clearest  evidence  of  the  senses, 
and  where  the  misconception  has  related  to  the  substan- 
tive matters  of  judicial  inquiry.  It  has  been  said  with 
the  strictest  philosophical  truth,  that  "proof  is. nothing- 
more  than  a  presumption  of  the  highest  order."  ^  But 
these  considerations,  instead  of  establishing  the  superior 
efl&cacy  of  circumstantial  evidence,  seem  irresistibly  to 
lead  to  the  conclusion  that  it  is,  d  fortiori,  more  probable 
that  similar  misconception  may  take  place  as  to  collateral 
facts  and  incidents,  to  which,  perhaps,  particular  atten- 
tion may  not  have  been  excited. 

There  is  another  source  of  fallacy  and  danger  to 
which,  as  already  intimated,  circumstantial  evidence  is 
peculiarly  liable,  and  of  which  it  is  necessary  to  be  espe- 
cially mindful.  Where  the  evidence  is  direct,  and  the 
testimony  credible,  belief  is  the  immediate  and  necessary 
result ;  whereas,  in  cases  of  circumstantial  evidence,  pro- 
cesses  of  inference  and   deduction  are  essentially  in- 

a  Rex  V.  Wood  and  Brown,  28  State  Trials,  819 ;  Ann.  Reg.  1784. 
''  Per  Lord  Erskinc  in  the  Banbury  Peerage  Case. 


CIRCUMSTANTIAL   EVIDENCE.  35 

volved,  frequently  of  a  most  delicate  and  perplexing 
character,  liable  to  numerous  causes  of  fallacy,  some  of 
them  inherent  in  the  nature  of  the  mind  itself,  which 
has  been  profoundly  compared  to  the  distorting  power 
of  an  uneven  mirror,  imparting  its  own  nature  upon  the 
true  nature  of  things."  Mr.  Baron  Alderson,  upon  a 
trial  of  this  kind,  said,  "  It  was  necessary  to  warn  the 
jury  against  the  danger  of  being  misled  by  a  train  of 
circumstantial  evidence.  The  mind  was  apt  to  take  a 
pleasure  in  adapting  circumstances  to  one  another,  and 
even  in  straining  them  a  little,  if  need  be,  to  force 
them  to  form  parts  of  one  connected  whole ;  and  the 
more  ingenious  the  mind  of  the  individual,  the  more 
likely  was  it,  in  considering  such  matters,  to  overreach 
and  mislead  itself,  to  supply  some  little  link  that  is 
wanting,  to  take  for  granted  some  fact  consistent  with 
its  previous  theories,  and  necessary  to  render  them 
complete."  ^ 

It  may  be  objected  that  the  foregoing  observations 
tend  to  create  distrust  in  all  human  testimony.  While 
it  must  be  admitted  that  the  senses  cannot  be  implicitly 
depended  upon,  it  is  certain  that  their  liability  to  mis- 
take may  be  greatly  diminished  by  habits  of  accurate 
observation  and  relation.  The  general  conformity  of  our 
impressions  to  truth  and  nature,  and  the  universal  opin- 
ion and  practice  of  mankind,  establish  the  reasonableness 
and  propriety  of  our  faith  in  testimonial  evidence.  The 
interest  to  which  all  controverted  matters  of  fact  give 
occasion  is  a  manifestation  of  the  preference  in  the 
human  mind  of  truth  to  falsehood;  and,  finally,  the 

a  Novum  Organum,  lib.  i.  Aph.  41,  45;  Best  on  Presumptions,  255;  and  see  3 
Bentham's  Jud.  Ev.,  b.  v,  c.  xv,  s.  iv. 
b  Reg.  V.  Hodges,  2  Lewin's  C.  C.  227. 


36  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

number  of  mistaken  inferences  from  the  testimony  of 
the  senses  is  inconceivably  small,  as  compared  with  the 
almost  infinite  number  of  judgments  which  are  correctly 
drawn  from  evidence  of  the  kind  in  question. 

Section  4. 

of   the   sources   and  classification   of   circumstantial 

evidence. 

In  the  present  state  of  knowledge  there  can  be  little 
danger  of  mistake  as  to  the  legitimate  subjects  of  human 
belief;  but  how  melancholy  is  the  degradation  of  the 
human  intellect  exhibited  in  the  records  of  superstition, 
imposture,  and  delusion,  of  enthusiasm  and  credulity, 
of  judicial  darkness  and  cruelty,  in  the  pages  of  our 
own  history,  as  well  as  in  those  of  every  other  nation  ! 

A  profound  ignorance  of  the  laws  of  nature,  an  ina- 
bility to  account  for  the  origin  of  evil,  and  to  reconcile 
its  existence  with  the  Divine  attributes,  and  the  impulse 
to  avenge  wrongs  for  which  human  institutions  afforded 
no  remedy,  led  to  a  universal  belief  in  the  supernatural 
interposition  of  the  Supreme  Being  on  behalf  of  his  in- 
jured moral  offspring.  Of  this  persuasion,  augury,  divin- 
ation, judicial  combat,  the  various  forms  of  trial  by  ordeal, 
the  supposed  intimations  of  truth  conveyed  by  means  of 
apparitions  and  dreams,  the  bleeding"  of  a  corpse  in  the 
presence  of  the  murderer,  and  his  reluctance  to  touch  it,* 
were  thought  to  be  so  many  manifestations ;  while,  with 
the  wildest  inconsistency,  the  belief  was  equally  general 
in  the  existence  and  influence  of  witchcraft,  and  other 
modes  of  demoniacal  agency  over  the  minds  and  actions 

a  See  Rex  v.  Standsfield,  11  St.  Tr.  1403;  and  Rex  i\  Okeman,  14  ibid.  1324. 


CIRCUMSTANTIAL   EVIDENCE.  37 

of  men.  The  history  of  all  nations  affords  lamentable 
memorials  of  judicial  murders,  the  natural  consequences 
of  such  mistaken  and  degrading  views.  Without  advert- 
ing to  other  reasons,  it  is  conclusive  against  all  departure 
by  the  Supreme  Being  from  the  ordinary  course  of  his 
administration,  that  so  many  instances  of  erroneous  con- 
viction and  execution  have  occurred  in  all  ages  and  in 
all  countries. 

The  course  of  external  nature,  and  the  mental  and 
physical  constitution  of  man,  and  his  actions  and  moral 
and  mechanical  relations,  are  the  only  true  sources  of 
those  facts  which  constitute  circumstantial  evidence. 

In  every  inquiry  into  the  truth  of  any  alleged  fact,  as 
to  which  our  means  of  judgment  are  secondary  facts, 
there  must  exist  relations  and  dependencies,  inseparable 
from  the  principal  fact,  which  will  commonly  be  mani- 
fested by  external  appearances.  No  action  of  a  rational 
being  is  indifferent  or  independent ;  and  every  such  ac- 
tion must  necessarily  be  connected  with  antecedent,  con- 
comitant, and  subsequent  conditions  of  mind,  and  with 
external  circumstances,  of  the  actual  existence  of  which, 
though  it  may  not  invariably  be  apparent,  there  can  be 
no  doubt. 

A  crime,  so  far  as  it  falls  within  the  cognizance  of  hu- 
man tribunals,  is  an  act  proceeding  from  a  wicked  motive; 
it  follows,  therefore,  that  in  every  such  act  there  must  have 
been  one  or  more  voluntary  agents ;  that  it  must  have 
had  corresponding  relations  to  some  precise  moment  of 
time  and  portion  of  space ;  that  there  must  have  existed 
inducements  to  guilt,  preparations  for,  and  objects  and 
instruments  of  crime ;  these,  the  acts  of  disguise,  flight, 
or  concealment,  the  possession  of  plunder  or  other  fruits 
of  crime,  and  innumerable  other  particulars  connected 


38  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

with  individual  conduct,  and  with  moral,  social,  and 
physical  relations,  afford  materials  for  the  determination 
of  the  judgment.  It  would  be  impracticable  to  enume- 
rate the  infinite  variety  of  circumstantial  evidentiary  facts, 
which  of  necessity  are  as  various  as  the  modifications  and 
combinations  of  events  in  actual  life.  "All  the  acts  of 
the  party,  all  things  that  explain  or  throw  light  on  these 
acts,  all  the  acts  of  others  relative  to  the  affair,  that  come 
to  his  knowledge  and  may  influence  him ;  his  friendships 
and  enmities,  his  promises,  his  threats,  the  truth  of  his 
discourses,  the  falsehood  of  his  apologies,  pretences,  and 
explanations ;  his  looks,  his  speech,  his  silence  where  he 
was  called  to  speak;  everything  which  tends  to  establish 
the  connection  between  all  these  particulars;  every  cir- 
cumstance, precedent,  concomitant,  and  subsequent,  be- 
come parts  of  circumstantial  evidence.  These  are  in  their 
matter  infinite,  and  cannot  be  comprehended  within  any 
rule,  or  brought  under  any  classification."  * 

Evidentiary  facts  of  a  circumstantial  nature  are  sus- 
ceptible only  of  a  very  general  arrangement,  into  two 
classes  :  namely,  moral  indications,  afforded  by  the  rela- 
tions and  language  and  conduct  of  the  party ;  and,  sec- 
ondly, facts  which  are  apparently  extrinsic  and  mechani- 
cal, and  independent  of  moral  conduct  and  demeanor ; 
and  each  of  these  classes  may  be  further  considered,  as 
such  facts  are  inculpatory  or  exculpatory.  But  this  di- 
vision is  grounded  upon  the  apparent  rather  than  the 
real  qualities  of  actions,  and  cannot  be  regarded  as  strictly 
accurate ;  since  all  the  actions  of  a  rational  agent  are 
prompted  by  motives,  and  are,  therefore,  really  moral  in- 
dications, though  it  may  not  be  always  practicable  to 
develop  their  moral  relations. 

"^  2  Burke's  Works,  ut  supra,  623. 


CHAPTER  III. 
INCULPxVTORY   MORAL  INDICATIONS. 


Although,  for  reasons  which  have  been  explained,  a 
complete  enumeration  of  facts  as  invariably  conjoined 
with  authoritative  presumptions  would  be  impracticable, 
it  is  important,  in  illustration  of  the  general  principles 
which  determine  the  relevancy  and  effect  of  circumstan- 
tial evidence,  to  notice  some  particulars  of  moral  conduct, 
of  frequent  occurrence  in  courts  of  criminal  jurisdiction, 
which  are  popularly,  and  on  that  account  judicially,  con- 
sidered as  leading  to  important  and  well-grounded  pre- 
sumptions. 

These  circumstances  may  be  considered  under  the 
heads  of  motives  to  crime,  declarations  or  acts  indicative 
of  guilty  consciousness  or  intention,  preparations  for  the 
commission  of  crime,  possession  of  the  fruits  of  crime, 
refusal  to  account  for  appearances  of  suspicion,  or  un- 
satisfactory explanations  of  such  appearances,  evidence 
indirectly  confessional,  the  suppression,  destruction,  simu- 
lation, and  fjibrication  of  evidence,  statutory  presump- 
tions, and  scientific  testimony. 

Section  1. 
motives  to  crime. 

As  there  must  pre-exist  a  motive  to  every  voluntary 
action  of  a  rational  being,  it  is  proper  to  comprise  in  the 


40  WILLS    ON    CIRCUMSTANTL\L    EVIDENCE. 

class  of  moral  indications  such  particulars  of  external  re- 
lation as  are  usually  observed  to  operate  as  inducements 
to  the  commission  of  crime,  as  well  as  such  indications 
from  language  and  conduct  as  more  directly  and  unequiv- 
ocally manifest  a  connection  between  the  deed  and  the 
mind  of  the  actor.  In  strictness  the  word  "  motive," 
though  popularly  applied  to  denote  the  external  objects 
potentially  calculated  to  act  on  the  mind,  ought  to  be 
limited  to  the  designation  of  such  objects  only  as  have 
actually  influenced  the  will,  as  the  efficient  causes  of 
moral  action. 

The  metaphorical  origin  of  this  word  has  given  rise  to 
serious  misconception  as  to  the  nature  of  moral  and  legal 
responsibility,  upon  which  it  is  essential  that  our  concep- 
tions should  be  accurate.  From  its  primary  application 
to  material  force,  an  imaginary  analogy  has  been  supposed 
between  the  action  of  moral  and  physical  agencies.  In 
reality,  however,  there  is  no  resemblance  between  the  fatal 
and  irresistible  constraint  of  mechanical  power  and  the 
influence  of  motives  on  the  self-originating  will  of  an 
intelligent  and  free  agent.  Man  is  not  the  passive  sub- 
ject of  necessity  or  chance;  nor  are  his  moral  judgments 
merely  the  abstractions  of  logic :  on  the  contrary,  he  is  en- 
dowed with  instincts,  passions,  and  aff"ections,  and  above 
all  with  reason,  and  the  capacity  of  estimating  the  quali- 
ties and  tendencies  of  his  volitions  and  actions,  and  with 
the  power  of  choosing  from  among  the  various  induce- 
ments, emotional  and  rational,  which  are  presented  t(» 
him,  the  governing  principles  of  his  conduct.* 

These  considerations  constitute  the  foundation  of  moral 
and  legal  responsibility;  and  it  follows  from  them,  that  in 

*6  Stewart's  collected  Works,  349;    Cousin,  Cours  de  I'Hist.  de   Philosoyihie, 
prem.  ser.  tome  4,  Lef on  xxiv. 


MOTIVES    TO    CRIME.  41 

all  their  important  actions  we  naturally,  reasonably,  and 
safely  judge  of  men's  motives  by  their  conduct,  as  we 
conclude  from  the  nature  of  the  stream  the  qualities  of 
its  source.  It  is  indispensable,  therefore,  in  the  investi 
gation  of  imputed  guilt  to  look  at  all  the  surrounding  cir- 
cumstances which  connect  the  actor  with  other  persons 
and  things,  and  may  have  operated  as  motives  and  influ- 
enced his  actions. 

The  common  inducements  to  crime  are,  the  desire  of 
revenging  some  real  or  fancied  wrong ;  of  getting  rid  of 
a  rival  or  an  obnoxious  connection  ;  of  escaping  from  the 
pressure  of  pecuniary  or  other  obligation  or  burden ;  of 
obtaining  plunder  or  other  coveted  object;  of  preserving 
reputation,  either  that  of  general  character,  or  the  conven- 
tional reputation  of  profession  or  sex ;  or  of  gratifying 
some  other  selfish  or  malignant  passion.  But  it  is  of  the 
essence  of  moral  weakness  that  it  forms  a  mistaken  esti- 
mate of  present  good,  and  a  want  of  proportion  will,  there- 
fore, of  necessity  be  found  between  the  objects  of  desire 
and  the  means  employed  to  obtain  them.  The  assassin's 
dagger  may  be  put  into  requisition  for  a  few  pieces  of  gold, 
and  the  difference  between  that  and  other  inducements 
to  crime  is  a  difference  only  of  degree.  Indeed,  tried 
by  the  strict  rules  of  morality,  there  can  be  no  such  thing 
as  an  adequate  motive  to  the  commission  of  crime. 

It  is  always  a  satisfactory  circumstance  of  corrobora- 
tion w^hen,  in  connection  with  convincing  f  icts  of  conduct, 
an  apparent  motive  can  be  assigned ;  but,  as  the  opera- 
tions of  the  mind  are  invisible  and  intangible,  it  is  im- 
possible to  go  further ;  and  it  must  be  remembered  that 
there  may  be  motives  which  no  human  being  but  the 
party  himself  can  divine.  Nor  must  undue  importance 
be  attached  to  external  circumstances  supposed  to  be  in- 
dicative of  guilty  motive,  for  there  are  few  men  to  whom 


42  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

some  or  other  of  the  forms  of  crime  may  not  apparently 
prove  advantageous.  Neither  ought  the  existence  of  such 
apparent  inducements  to  supersede  the  necessity  for  the 
same  amount  of  proof  as  would  be  deemed  necessary  in 
the  absence  of  all  evidence  of  such  a  stimulus.  Suspicion, 
too  readily  excited  by  the  appearance  of  supposed  induce- 
ment, is  incompatible  with  that  even  and  unprejudiced 
state  of  mind  which  is  indispensable  to  the  formation  of 
correct  and  sober  judgment.  While  true  it  is  that  fre- 
quently "  imputation  and  strong  circumstances  .  .  .  lead 
directly  to  the  door  of  truth,"  it  is  equally  true  that  en- 
tirely to  penetrate  the  mind  of  man  is  out  of  human 
power,  and  that  circumstances  which  apparently  have 
presented  powerful  notives,  may  never  have  acted  as 
such.  Who  can  say  that  some  "uncleanly  apprehen- 
sion," some  transient  thought  of  sinister  aspect,  in  the 
dimness  of  moral  light  momentarily  mistaken  for  good, 
may  not  float  unbidden  across  the  purest  mind  ?  And 
how  often  is  it  that  man  has  no  control  over  circum- 
stances of  apparent  power  over  his  motives  ? 

It  follows  from  the  foregoing  remarks  that  evidence  of 
collateral  facts  which  may  appear  to  have  presented  a 
motive  for  a  particular  action  deserves  per  se  no  weight. 
With  motives  merely  the  legislator  and  the  magistrate 
have  nothing  to  do ;  actions,  as  the  objects  or  results 
OF  motives,  are  the  only  legitimately  cognizable  subjects 
of  human  law.  Actus  non  facit  reum  nisi  mens  sit  rea 
is  a  maxim  of  reason  and  justice  not  less  than  of  positive 
law.*  Motives  and  their  objects  differ,  it  has  been  re- 
marked, as  the  springs  and  wheels  of  a  watch  differ  from 
the  pointing  of  the  hour,  being  mutually  related  in  like 
manner.*'  But  such  evidence  is  most  pertinent  and  import- 
ant when  clearly  connected  with  declarations  which  de- 

»  3  Inst.  107.  •>  Hamiiden's  Lect..  vt  supra,  2i\. 


MOTIVES    TO    CRIME.  43 

inoiistrate  that  the  particular  motive  has  passed  into 
action,  or  with  inculpatory  moral  facts  which  it  tends 
to  explain  and  co-ordinate,  and  which  would  otherwise 
be  inexplicable. 

The  particulars  of  exi^ernal  relation  and  moral  conduct 
will  in  general  correctly  indicate  the  character  of  the 
motive  in  which  they  have  originated.  On  the  other 
hand,  the  entire  absence  of  surrounding  circumstances, 
which  on  the  ordinary  principles  of  human  nature  may 
reasonably  be  supposed  to  have  acted  as  an  inducing 
cause,  is  justly  regarded,  whenever  upon  the  general 
evidence  the  imputed  guilt  is  doubtful,  as  affording  a 
strong  presumption  of  innocence. 

It  occasionally  happens  that  actions  of  great  enormity 
are  committed,  for  which  no  apparent  motive  is  discov- 
erable. It  must  not  be  concluded,  however,  that  no 
pre-existent  motive  has  operated ;  and  upon  principles 
of  reason  and  justice  essential  to  common  security,  the 
actor  is  held  to  be  legally  accountable  for  his  actions, 
unless  it  is  clearly  and  indubitably  shown  that  he  is 
bereft  of  reason  and  moral  power.  A  sense  of  injury, 
and  long-cherished  feelings  of  resentment,  may  ulti- 
mately induce  a  state  of  mind  independent  of  self-re- 
straint, and  render  their  victim  the  sport  of  ungovern- 
able impulses  of  passion;''  but  the  distinction  is  evident 
and  just  between  such  actions  as  are  the  consequences 
of  a  voluntary  abdication  of  moral  control,  and  actions 
committed  under  the  over-mastering  power  of  a  delusion 
of  the  imagination,  which,  ♦  though  groundless,  operates 
upon  the  mind  with  all  the  force  of  reality  and  necessity.^ 

»  Rex  V.  Earl  Ferrers,  19  St.  Tr.  885. 

b  Rexv.  Hadfield,  27  St.  Tr.  1281:  Rex  v.  Martin,  York  Sp.  Ass.  1831,  Short- 
hand Rep.  by  Eraser ;  Rex  v.  Offord,  5  C.  <fc  P.  168. 


44  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

On  a  late  trial  for  murder,  Lord  Chief  Justice  Camp- 
bell thus  summed  up  the  doctrine  under  discussion  : 
"  With  respect  to  the  alleged  motive,  it  is  of  great  im- 
portance to  see  whether  there  was  a  motive  for  commit- 
ting such  a  crime,  or  whether  there  was  not ;  or  whether 
there  is  an  improbability  of  its  having  been  committed 
so  strong  as  not  to  be  overpowered  by  positive  evidence. 
But  if  there  be  any  motive  which  can  be  assigned,  I  am 
bound  to  tell  you  that  the  adequacy  of  that  motive  is  of 
little  importance.  We  know,  from  the  experience  of 
criminal  courts,  that  atrocious  crimes  of  this  sort 
have  been  committed  from  very  slight  motives ;  not 
merely  from  malice  and  revenge,  but  to  gain  a  small 
pecuniary  advantage,  and  to  drive  off  for  a  time  pressing- 
difficulties.'"^ 

It  is  a  general  rule  for  the  interpretation  of  conduct  as 
indicative  of  motives,  demanded  by  social  security  and 
founded  on  substantial  justice,  that  every  man  shall  he 
held  to  have  intended,  and  therefore  to  be  legally  ac- 
countable for,  the  natural  and  probable  consequences  of 
his  actions  ;  ^  and  no  one  can  be  permitted  to  speculate 
with  impunity  upon  the  precise  extent  to  which  he  may 
securely  carry  his  mischievous  intentions,  the  reality 
and  degree  of  which  it  is  alike  impossible  to  determine. 
If,  therefore,  the  motive  have  been  to  commit,  not  the 
particular  crime,  but  another  of  equal  legal  degree,  then 
the  maxim  applies  that  in  criminalibus  sufficit  generalis 
malitia  intentionis  cum  facto  paris  gradus.'^  "All  crimes," 
says  Bacon,  "  have  their  conception  in  a  corrupt  intent, 
and  have  their  consummation  and  issuing  in  some  partic- 

a  Reg.  V.  Palmer,  Short-hand  Report,  308. 

b  Rex  V.  Farrington,  R.  &  R.  209  ;  Rex  v.  Harvey,  2  B.  <fc  C.  257  ;  Rex  v.  Dixon, 
2  M.  &  S.  11. 

■=  Bacon's  Max.  Reg.  xv. 


GUILTY    CONSCIOUSNESS    OR    INTENTION.  45 

ular  fact,  which,  though  it  bo  not  the  fact  at  which  the 
intention  of  the  malefactor  levelled,  yet  the  hiw  giveth 
him  no  advantage  of  the  error,  if  another  particular  occur 
of  as  high  a  nature.  Therefore  if  an  empoisoned  apple  be 
laid  in  a  place  to  empoison  J.  S.,  and  J.  D.  cometh  by 
chance  and  eateth  of  it,  this  is  murder  in  the  principal, 
that  is  actor,  and  yet  the  malice  in  individuo  was  not 
nu'ainst  J.  D."*  "In  capital  cases,"  declares  the  same 
high  authority,  ^Hn  favorem  vitce,  the  law  will  not  punish 
in  so  high  a  degree,  except  the  malice  of  the  will  and 
intention  appear."  ^  But  nevertheless  the  rule  under 
discussion  has  been  extended  beyond  all  reasonable  ap- 
plication, as  where  two  persons  were  convicted  of  lying 
in  wait  and  slitting  the  prosecutor's  nose  with  intent  to 
maim  and  disfigure,  an  offence  then  capital  by  the  statute 
22  &  23  Car.  II.,  c.  1,  though  the  real  intention  was  to 
commit  murder  in  order  to  obtain  an  estate,  an  offence 
not  capital,  and  there  was  no  such  special  intent  as  the 
statute  required; "  a  case  which,  as  extending  a  criminal 
law  by  equity,  is  inconsistent  with  the  general  principles 
of  jurisprudence,  and  with  the  spirit  of  many  later  cases.'* 

Section  2. 

declarations  and  acts  indicative  of  guilty  conscious- 
ness or  intention. 

It  is  very  common  with  persons  who  have  been  en- 
gaged, or  are  about  to  engage,  in  crime,  to  make  obscure 
(n-  mysterious  allusion  to  their  criminal  acts  or  purposes, 

"  Bacon's  Max.  Reg.  xv.  ''  Ih.  vii. 

"  Rex  V.  Coke  and  Woodburne,  16  St.  Tr.  54. 

't  4  Lord  Campbeirs  Lives  of  the  L.  Oh.  601 ;  Rex  v.  Bell,  Foster's  Discourses  on 
Or.  Law,  App.;  Rex  v.  Carroll,  2  East's  P.  C.  400:  Rex  v.  Duffin,  R.  &  R.  365. 


46  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

or  to  boast  to  others  whose  standard  of  moral  conduct 
is  the  same  as  their  own,  of  what  they  have  done  or 
will  do,  or  to  give  vent  to  expressions  of  revengeful 
feelings  or  of  malignant  satisfaction  at  the  accomplish- 
ment or  anticipated  occurrence  of  some  serious  mischief. 
Such  declarations  or  allusions  are  of  great  moment  when 
clearly  connected  by  independent  evidence  with  some 
anterior  or  subsequent  criminal  action.  ^ 

When  an  act  is  of  such  a  nature  as  not  necessarily  to 
imply  a  guilty  intention,  and  such  intention  is  the  spe- 
cific point  in  issue,  then  the  evidence  of  declarations  by 
the  party,  or  of  collateral  circumstances,  may  be  of  the 
last  importance,  as  explanatory  of  his  motives  and  pur- 
poses. In  regard  to  declarations  referring  to  former 
and  existing  facts,  Lord  Chief  Justice  Eyre  said  that 
"  Such  declarations  are  the  explanation  and  connection 
of  those  facts  which  serve  to  make  them  intelligible. 
What  a  prisoner  has  said  respecting  a  particular  fact  is 
admissible  evidence,  not  in  the  nature  of  a  confession, 
but  in  evidence  of  the  particular  fact ;  and  such  declara- 
tions are,  therefore,  receivable  in  all  cases  whatever,  in 
order  to  explain  and  to  establish  the  state  of  any  matter 
of  fact  which  is  in  dispute,  or  the  subject  of  inquiry 
before  a  jury." " 

The  just  effect  of  such  language  in  reference  to  future 
events  is  to  show  the  existence  of  the  disposition,  from 
which  criminal  actions  proceed,  to  render  it  less  improb- 
able that  the  person  proved  to  have  used  it  would  com- 
mit the  particular  offence,  and,  if  in  itself  ambiguous,  to 
explain  the  real  motive  and  object  of  the  contemplated 
action.  But  evidence  of  such  language  cannot  dispense 
with  the  obligation  of  sufficient  proof  of  the  criminal 

a  See  Rex  v.  Crossfield,  26  St.  Tr.  215. 


GUILTY    CONSCIOUSNESS   OR    INTENTION.  4  / 

facts ;  for,  though  malignant  feelings  may  possess  the 
mind,  and  lead  to  intemperate  and  criminal  expressions, 
they  nevertheless  may  exercise  but  a  transient  influence, 
without  leading  to  action."  It  must  be  borne  in  mind, 
too,  as  in  regard  to  the  proof  of  language  in  general,  that 
declarations  may  be  obscure  in  themselves,  or  impei- 
fectly  remembered,  and  that  witnesses  may  speak  with- 
out a  strict  and  due  regard  to  truth. ^  "  Words,"  says 
Mr.  Justice  Foster,  "  are  transient  and  fleeting  as  the 
wind ;  they  are  frequently  the  effect  of  sudden  trans- 
port, easily  misunderstood,  and  often  misreported." '  It 
has  been  well  remarked  that,  "  Mere  threats  often  pro- 
ceed from  temporary  irritation  without  deep-rooted  hos- 
tility. They  indicate  a  rash  and  unguarded,  rather  than 
a  determinedly  malignant,  character ;  and  the  very  utter- 
ance of  them,  as  every  one  well  knows,  tends  to  defeat 
their  execution.  The  man  who  has  resolved  on  a 
crime  is  more  apt  to  keep  his  purpose  to  himself,  or 
to  confide  it  to  an  associate,  under  the  seal  of  secrecy. 
Even  the  most  wary,  however,  sometimes  let  their 
wicked  purposes  peep  out  accidentally  in  the  freedom 
of  companionship,  or  the  weakness  of  drunken  confi- 
dence. When  such  unguarded  hints,  dark  and  appa- 
rently unmeaning  at  the  time,  coincide  with  the  subse- 
quent tokens  of  guilt,  they  are  strong  cords  in  the  net 
of  criminating  evidence."  "^ 

On  the  principle  under  consideration,  all  such  rele- 
vant acts  of  the  party  as  may  reasonably  be  considered 
explanatory  of  his  motives  and  purposes,  even  though 
they  may  severally  constitute  distinct  felonies,  are  clearly 

a  3  Benth.  Jud.  Ev.  b.  5,  c.  4. 

»  Per  Dallas,  J.,  in  Rex  v.  Turner,  30  St.  Tr.  1132. 

c  Foster's  Cr.  L.,  ut  supra,  Disc.  1. 

*  1  Dickson's  Law  of  Ev.  in  ScotlanJ,  157. 


48.  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

admissible  in  evidence ;  of  which  our  reports  present 
many  illustrations.  Thus,  where  upon  the  trial  of  a  man 
for  setting  fire  to  a  stack  of  straw  it  appeared  that  it  had 
been  set  on  fire  by  his  having  fired  a  gun  very  near  to  it, 
evidence  was  admitted  that  the  stack  had  been  set  fire  to 
the  day  before,  and  that  the  prisoner  was  very  near  to  it 
with  his  gun  at  the  same  time ; ""  and  in  a  similar  case,  Mr. 
Justice  Patteson  admitted  evidence  of  the  prisoner's  pres- 
ence and  demeanor  at  incendiary  fires  of  other  ricks, 
the  property  respectively  of  two  other  persons,  which 
occurred  the  same  night,  although  those  fires  were  the 
subjects  of  other  indictments  against  the  prisoner ;  but 
the  learned  judge  held  that  evidence  could  not  be  given 
of  threats,  statements,  and  particular  acts  pointing  alone 
to  such  other  charges,  and  not  tending  to  explain  the  con- 
duct of  the  prisoner  in  reference  to  the  fire  in  question.'' 
Mr.  Justice  Erie  said,  his  experience  had  taught  him 
that  in  cases  of  arson  indications  of  guilt  were  often 
found  in  extremely  minute  circumstances,  which  were 
not  the  less  cogent  on  that  account;  that  it  was  to  the 
words,  whether  true  or  false,  by  which  a  man  accounted 
for  himself  at  the  critical  time,  to  his  conduct  when  the 
fire  was  in  progress,  to  his  manner  of  offering  assistance, 
and  other  such  particulars,  that  attention  should  be  di- 
rected, and  that  in  the  absence  of  broad  facts,  such  mi- 
nute circumstances  often  afforded  satisfactory  evidence." 
Upon  a  charge  of  maliciously  shooting,  where  the  ques- 
tion w^as  whether  the  act  proceeded  from  an  accident  or 
design,  evidence  was  admitted  that  the  prisoner  had  in- 
tentionally shot  at  the  same  person  about  a  quarter  of 

»  Reg.  V.  Dossett,  2  C.  &  K.  306,  coram  Maule,  J. 

b  Reg.  V.  Taylor,  5  Cox's  C.  C.  138. 

•=  Charge  to  tbe  Grand  Jury  :  Warwick  Spring  Ass.  1859. 


GUILTY   CONSCIOUSNESS   OR   INTENTION.  49 

an  hour  before."  On  a  trial  for  murder  by  administering 
prussic  acid  in  porter,  Mr.  Baron  Parke  admitted  evi- 
dence that  the  deceased  had  been  taken  ill  several 
months  before,  after  partaking  of  porter  with  the  pris- 
oner, and  said,  that  although  this  was  no  direct  proof 
of  an  attempt  to  poison,  the  evidence  was  neverthe- 
less admissible,  because  anything  tending  to  show 
antipathy  in  the  party  accused  against  the  deceased  was 
admissible."*'  • 

In  like  manner,  upon  a  charge  of  uttering  forged  notes, 
the  forged  notes,  either  of  the  same  or  of  a  different  bank, 
found  on  the  prisoner's  person,  were  allowed  to  be  given  in 
evidence  to  show  guilty  knowledge ; "  and  upon  an  indict- 
ment for  uttering  a  forged  Bank  of  England  note,  evidence 
was  admitted  that  other  notes  of  the  same  fabrication  had 
been  found  on  the  files  of  the  Bank,  with  the  prisoner's 
handwriting  on  the  back  of  them  -/  but  in  a  similar  case, 
evidence  of  the  subsequent  uttering  of  another  forged  note 
was  held  to  be  inadmissible  to  prove  guilty  knowledge, 
unless  the  latter  uttering  was  in  some  way  connected 
with  the  uttering  which  was  the  subject  of  indictment,  as 
by  showing  that  all  of  the  notes  were  of  the  same  manu- 
facture." So  the  possession  of  a  large  quantity  of  coun- 
terfeit coin,  many  of  each  sort  being  of  the  same  mould, 
and  each  piece  of  it  being  wrapped  in  a  separate  piece  of 
paper,  and  the  whole  distributed  in  different  pockets  of 
the  dress,  was  held  to  be  evidence  that  the  prisoner  knew 
that  the  coin  was  counterfeit,  and  intended  to  utter  it.^ 

»  Rex  V.  Coke,  R.  &  R.  663.  "  Rex  v.  Tawell,  infra. 

"  Rex  V.  Sunderland,  1  Lewin,  102;  Rex  v.  Hodgson,  ib.  103;  Rex  i-.  Kirkwood, 
ib.  103;  Rex  v.  Martin,  ib.  104;  Rex  v.  Hall;  Rex  i-.  Millward,  R.  &  R.  245;  Reg. 
V.  Green,  3  C.  <t  K.  209. 

1  Rex  V.  Ball,  1  Campbell,  324 ;  R.  &  R.  132. 

s  Rex  V.  Taverner,  6  C.  &  P.  413 ;  and  see  Reg.  v.  Smith,  ib. 

f  Reg.  V.  Jarvis,  25  L.  J.  M.  C.  30;  Rex  v.  Fuller,  R.  &  li.  308. 

4 


50  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

Ir^  a  late  case,  on  an  indictment  for  uttering  a  counterfeit 
crown-piece,  knowing  it  to  be  counterfeit,  evidence  was 
admitted,  in  order  to  prove  the  guilty  knowledge,  that  the 
prisoner  on  a  day  subsequent  to  such  uttering  uttered  a 
counterfeit  shilling ; ""  but  this  seems  to  have  carried  the 
principle  very  far. 

Where,  upon  an  indictment  for  receiving  goods  know- 
ing them  to  have  been  stolen,  it  appeared  that  the  articles 
had  been  stolen,  and  had  come  into  the  possession  of 
the  prisoner  at  several  distinct  times,  the  judge,  after 
compelling  the  prosecutor  to  elect  upon  which  act  of 
receiving  he  would  proceed,  told  the  jury  that  they 
might  take  into  their  consideration  the  circumstances 
of  the  prisoner  having  the  various  articles  of  stolen 
property  in  his  possession,  and  pledging  or  otherwise 
disposing  of  them  at  various  times,  as  an  ingredient  in 
coming  to  a  determination  whether,  when  he  received 
the  articles  for  which  the  prosecutor  elected  to  proceed, 
he  knew  them  to  have  been  stolen.*"  In  like  manner, 
upon  an  indictment  against  principal  and  receiver, 
where  goods  were  found  upon  the  receiver's  premises, 
which  had  been  taken  from  the  prosecutor's  premises, 
it  was  held  that  the  prosecutor  might  give  evidence  of 
the  finding  of  other  goods  at  the  house  of  the  principal, 
notwithstanding  there  was  no  evidence  to  connect  the 
receiver  with  them,  and  that  he  was  not  bound  to  elect." 
On  the  same  principle,  evidence  of  the  murder  of  one 
person  may  be  given  in  evidence  upon  a  trial  for  the 
murder  of  another,  if  such  evidence  tend  to  show  that 
the  prisoner  might  have  had  a  motive  arising  out  of 

»  Reg.  V.  Foster,  6  Cox's  C.  C.  521,  24  L.  J.  M.  C.  134. 

"  Rex  V.  Dunn,  1  Moody's  C.  C.  150;  and  see  Reg.  i'.  Bleasdale,  2  C.  &  K.  765. 

0  Reg.  t;.  Hinley,  1  Cox's  C.  C.  12. 


GUILTY   CONSCIOUSNESS   OR   INTENTION.  51 

the  other  murder  for  committing  that  with  which  he  is 
charged.* 

On  the  principle  of  these  cases,  it  is  provided  by  stat- 
ute that  the  prosecutor  may  give  evidence  of  any  num- 
ber of  distinct  acts  of  embezzlement,  not  exceeding  three, 
committed  against  the  same  master,''  or  of  larceny  com- 
mitted against  the  same  person*'  respectively  within  six 
calendar  months  from  the  first  to  the  last  of  such  acts  ; 
and  by  St.  2  Wm.  IV,  c.  34,  s.  7,  any  person  uttering 
counterfeit  coin,  and  having  in  his  possession  at  the  same 
time  one  or  more  pieces  of  counterfeit  coin,  or  who  either 
on  the  day  of  such  uttering,  or  within  ten  days,  shall  utter 
other  counterfeit  coin,  is  made  guilty  of  a  much  more 
aggravated  offence  than  that  of  simply  uttering  base  coin. 

But  it  is  not  permitted  in  explanation  of  a  party's  mo- 
tive to  give  evidence  of  a  distinct  and  different  offence 
committed  against  another  person,  unconnected  with  and 
unrelated  to  the  particular  act  in  question.  Therefore  it 
was  held  that  it  was  not  competent  for  the  prosecutor, 
in  proof  of  the  guilty  knowledge  of  the  prisoner,  to  give 
in  evidence  that,  at  a  time  previous  to  the  receipt  of  the 
prosecutor's  goods,  he  had  in  his  possession  other  goods 
of  the  same  sort  as  those  mentioned  in  the  indictment, 
but  belonging  to  a  different  owner,  and  that  such  goods 
had  been  stolen  from  such  owner.*^  Lord  Chief  Justice 
Campbell  said  that  "the  law  of  England  does  not  al- 
low one  crime  to  be  proved  in  order  to  raise  a  proba- 
bility that  another  crime  has  been  committed  by  the  per- 
petrator of  the  first.  The  evidence  did  not  tend  to  show 
that  the  prisoner  knew  that  the  particular  goods  were 

*  Rex  17.  Clewes,  4  C.  &  P.  221 ;  and  see  Reg.  i'.  Geering,  infra. 

b  7  <fe  8  Geo.  IV,  c.  29,  s.  48.  o  14  &  15  Vict.  c.  100,  s.  16. 

^  Reg.  r.  Oddy,  20  L.  J.  M.  C.  198,  and  5  Cox's  C.  C.  210. 


52  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

stolen  at  the  time  he  received  them.  The  rule,"  he  added, 
"  which  has  prevailed  in  the  case  of  indictment  for  utter- 
ing forged  notes,  of  allowing  evidence  to  be  given  of  the 
uttering  of  other  forged  notes  to  different  persons,  has 
gone  great  lengths,  and  I  should  be  unwilling  to  see 
that  rule  applied  generally  in  the  administration  of  the 
criminal  law."^ 

Section  3. 
preparation  and  opportunity  for  the  commission  of 

CRIME. 

Premeditated  crime  must  necessarily  be  preceded,  not 
only  by  impelling  motives,  but  by  appropriate  prepara- 
tions. Possession  of  the  instruments  or  means  of  crime, 
under  circumstances  of  suspicion,  as  of  poison,  coining 
instruments,  combustible  matters,  picklocks,  housebreak- 
ing instruments,  dark-lanterns,  or  other  destructive  or 
criminal  or  suspicious  weapons,  materials,  or  instruments, 
and  many  other  acts  of  apparent  preparation,  are  import- 
ant facts  in  the  judicial  investigation  of  imputed  crime. 
Where  a  man  had  in  his  possession  a  large  quantity  of 
counterfeit  coin  unaccounted  for,  and  there  was  no  evi- 
dence that  he  was  the  maker,  it  was  held  to  raise  a  pre- 
sumption that  he  had  procured  it  with  intent  to  utter 
it.^'  But  the  personal  character  for  probity,  and  the  civil 
station  of  the  party,  are  highly  material  in  connection 
with  facts  of  this  kind.  A  medical  man,  for  instance,  in 
the  ordinary  course  of  his  profession,  has  legitimate  oc- 
casion for  the  possession  of  poisons,  a  locksmith  for  the 
use  of  picklocks.  In  many  cases  the  possession  of  such 
materials  or  instruments,  and  other  acts  indicative  of 

a  Reg.  r.  Butler,  2  C.  &  K.  221.  b  Rex  v.  Fuller,  R.  &  R.  308. 


RECENT   POSSESSION    OF   THE    FRUITS   OF   CRIME.  53 

purpose  to  commit  crime,  are  made  by  statute  prima 
facie  presumptions  of  guilt,  and  in  some  even  subsUin- 
tive  offences.* 

Facts  of  the  kind  referred  to  become  more  powerful 
indications  of  guilty  purpose  if  false  reasons  are  assigned 
to  account  for  them;  as  in  the  case  of  possessing  poison, 
that  it  was  procured  to  destroy  vermin,  which  is  the 
excuse  commonly  resorted  to  in  such  cases. 

The  bare  possession  of  the  means  of  crime,  or  other 
mere  acts  of  preparation,  without  more  conclusive  evi- 
dence, are  not  in  general  of  great  weight,  because  the 
intended  guilt  may  not  have  been  consummated ;  and 
until  that  takes  place  there  is  the  locus  poenitentice.  But 
as  preparations  must  necessarily  precede  the  commission 
of  premeditated  crime,  some  traces  of  them  may  gen- 
erally be  expected  to  be  discovered ;  and  if  there  be  not 
clear  and  decisive  proof  of  guilt,  the  absence  of  any  evi- 
dence of  such  preliminary  measures  is  a  circumstance 
strongly  presumptive  of  innocence. 

In  the  foregoing  remarks  it  is  of  course  assumed  that 
the  party  possessed  the  opportunity  of  committing  the 
imputed  act,  without  which  neither  the  existence  of 
motives,  nor  the  manifestation  of  criminal  intention  by 
threats  or  otherwise,  followed  even  by  preparations  for 
its  commission,  can  be  of  any  weight. 

Section  4. 

recent  possession  of  the  fruits  of  crime. 

Since  the  desire  of  dishonest  gain  is  the  impelling  mo- 
tive to  theft  and  robbery,  it  naturally  follows  that  the 
possession  of  the  fruits  of  crime  recently  after  it  has  been 

a  See  infra,  Sect.  8. 


54  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

committed  affords  a  strong  and  reasonable  ground  for 
the  presumption  that  the  party  in  whose  possession  they 
are  found  was  the  real  offender,  unless  he  can  account 
for  such  possession  in  some  way  consistently  with  his 
innocence.''  The  force  of  this  presumption  has  been 
recognized  from  the  earliest  times ;  and  it  is  founded  on 
the  obvious  consideration,  that  if  such  possession  have 
been  lawfully  acquired,  the  party  would  be  able,  at  least 
shortly  after  its  acquisition,  to  give  an  account  of  the 
manner  in  which  it  was  obtained;  and  his  unwillingness 
or  inability  to  afford  such  explanation  is  justly  regarded 
as  amounting  to  strong  self-condemnatory  evidence.  But 
it  has  been  ruled,  that  if  the  party  give  a  reasonable 
account  of  the  way  in  which  he  came  possessed  of  the 
property,  as  by  stating  the  name  of  the  person  from 
whom  he  obtained  it,  and  such  party  is  known  to  be  a 
real  person,  and  capable  of  being  easily  referred  to,  it 
is  then  incumbent  on  the  prosecutor  to  show  that  such 
account  is  false.  Therefore,  where  a  man  was  indicted 
for  stealing  a  piece  of  wood,  which  was  found  in  his 
shop  five  days  after  the  theft,  and  he  stated  that  he  had 
bought  it  from  a  person  whom  he  named,  who  lived 
about  t\vo  miles  off,  it  was  held  that  the  prosecutor  was 
bound  to  show  that  the  account  was  false.^  But  if  the 
account  given  be  unreasonable  or  improbable  on  the  face 
of  it,  or  if  the  party  have  given  different  accounts  of 
the  same  transaction,  then  he  will  not  be  relieved  from 
the  pressure  of  the  general  rule  of  presumption." 

»  Rex  V.  Burdett,  4  B.  &  Aid.  149 ;  Burnett  on  the  C.  L.  of  Scotland,  555 ;  2  Mas- 
cardus  De  Prob.  ut  supra,  Concl.  dcccxxxiv  ;  1  Hume's  Comm.  on  the  C.  L.  of 
Scotland,  111;  Best  on  Pres.  44. 

"  Reg.  V.  Smith,  2  C.  &  K.  217. 

<=  Reg.  V.  Crowhurst,  1  C.  &  K.  370;  Reg.  v.  Harmer,  3  Cox's  C.  C.  487;  Reg.  v. 
Debley,  2  C.  &  K.  818. 


RECENT   POSSESSION    OF    THE    FRUITS   OF    CRIME.  55 

In  such  cases  it  is  a  question  for  the  jury,  whether 
there  is  a  sufficiently  reasonable  account  given  by  the  pris- 
oner to  enable  the  prosecutor  to  find  the  party  named." 
But  these  refinements  are  not  strictly  fi)llowed  in  prac- 
tice, and  are  indeed  not  always  easily  capable  of  applica- 
tion. Thus,  where  a  prisoner  was  convicted  of  stealing 
some  articles  of  dress,  and  the  evidence  was  that  he  was 
in  possession  of  the  stolen  property  recently  after  it  had 
been  stolen,  that  he  sold  'it  openly  in  a  public-house,  and 
on  his  arrest  stated  to  the  constable  that  C.  and  D. 
brought  the  things  to  his  house,  and  that  W.,  who  was 
at  his  house,  would  say  that  it  was  true;  and  C,  D.,  and 
W.  were  known  to  the  constable,  and  might  have  been 
produced  as  witnesses,  but  were  Hot  called,  and  inquiries 
vwere  made  of  W.,  but  the  result  of  the  inquiry  was  not 
given  in  evidence ;  it  was  held  that  the  conviction  was 
good,  and  that  it  was  not  incumbent  on  the  prosecutor 
to  call  the  persons  to  whom  the  prisoner  had  referred  to 
disprove  his  statement.'' 

1.  It  is  manifest  that  the  force  of  this  rule  of  presump- 
tion depends  upon  the  recency  of  the  possession  as  re- 
lated to  the  crime,  and  that  if  the  interval  of  time  is 
considerable,  the  presumption  is  much  weakeried,  and 
more  especially  if  the  goods  are  of  such  a  nature  as  in 
the  ordinary  course  of  things  frequently  to  change  hands. 
From  the  nature  of  the  case,  it  is  not  possible  to  fix  any 
precise  period  within  which  the  effect  of  this  rule  of  pre- 
sumption can  be  limited ;  it  must  depend  not  only  upon 
the  mere  lapse  of  time,  but  upon  the  nature  of  the  prop- 
erty, and  the  concomitant  circumstances  of  each  par- 
ticular case.     Where  two  pieces  of  woollen  cloth  in  an 

a  Reg.  V.  Hughes,  Cox's  C.  C.  176. 

»>  Reg.  V.  Wilson,  26  L.  J.  M.  C.  45,  and  7  Cox's  C.  C.  310. 


56  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

unfinished  state,  consisting  of  about  twenty  yards  each, 
were  found  in  the  possession  of  the  prisoner  two  months 
after  being  missed,  and  still  in  the  same  state,  it  was  held 
that  this  was  a  possession  sufficiently  recent  to  call  upon 
him  to  show  how  he  came  by  the  property.**  In  another 
case,  Mr.  Justice  Bayley  directed  an  acquittal,  because 
the  only  evidence  against  the  prisoner  was,  that  the  goods 
were  found  in  his  possession  after  a  lapse  of  sixteen 
months  from  the  time  of  their  loss  ;  ^  and  where  a  shovel 
was  found,  six  months  after  the  theft,  in  the  house  of 
the  prisoner,  who  was  not  then  at  home,  Mr.  Baron 
Gurney  held  that  on  this  evidence  alone  the  prisoner 
ought  not  to  be  called  upon  for  his  defence.*'  Where  the 
evidence  against  a  prisoner,  charged  with  the  larceny  of  a 
saw  and  mattock,  was  that  the  stolen  articles  were  found 
in  his  possession  three  months  after  they  were  missed,  it 
was  held  that  this  was  not  such  a  recent  possession  as 
per  se  to  put  him  upon  showing  how  he  came  by  them ;'' 
and  where  a  stolen  horse  was  found  in  the  prisoner's 
possession  six  months  after  it  was  lost,  Mr.  Justice  Maule 
held  that  this  was  no  case  to  go  to  the  jury.''  But  in 
another  case,  where  three  sheets  were  found  upon  the 
prisoner's  bed,  in  his  house,  three  months  after  they 
had  been  stolen,  Mr.  Justice  Wightman  held  that  the 
case  must  go  to  the  jury,  on  the  ground  that  it  was 
impossible  to  lay  down  any  rule  as  to  the  precise  time 
which  was  too  great  to  call  upon  the  prisoner  to  account 
for  the  possession ;  ^  and  where  seventy  sheep  were 
put  upon  a    common  on    the    18th  of  June,  but   not 

a  Reg.  V.  Partridge,  7  C.  &  P.  551.  ^  Anon.  7  Monthly  Law  Mag.  68. 

<=  Rex  V.  Cruttenden,  Best  on  Pres.  306 ;  6  Jurist,  267. 

d  Rex  V.  Adams,  3  C.  &  P.  600. 

e  Reg.  V.  Cooper,  3  C.  &  K.  318. 

f  Rex  V.  Hewlett,  2  Russell  on  Cr.,  by  Greaves,  728. 


RECENT    POSSESSION    OF    THE    FRUITS   OF    CRIME.  ■}  t 

missed  until  November,  and  the  prisoner  was  provctl 
to  have  had  possession  of  four  of  them  in  October, 
and  of  nineteen  more  on  the  23d  of  November,  the 
judge  allowed  evidence  of  the  possession  of  both  td 
be  given.'' 

2.  It  is  obviously  essential  to  the  just  application  of 
this  rule  of  presumption,  that  the  house  or  other  place 
in  which  the  stolen  property  is  found  should  be  in  the 
exclusive  possession  of  the  prisoner.  Where  it  is  found 
in  the  apartments  of  a  lodger,  for  instance,  the  presump- 
tion may  be  stronger  or  weaker,  according  as  the  evi- 
dence does  or  does  not  show  an  exclusive  possession. 
As  a  general  rule,  where  stolen  goods  are  found  in  the 
house  of  a  married  man,  they  must  be  considered  in  his 
possession,  and  not  in  the  possession  of  his  wife,  unless 
there  be  evidence  of  something  specially  to  implicate 
her,  such  as  statements  made  or  acts  done  by  her,  in 
which  case  it  must  be  left  to  the  jury  to  decide  in  whose 
possession  they  were.''  Therefore,  where  a  wife  was 
indicted  with  her  husband  for  receiving  stolen  property, 
and  it  appeared  that  she  had  destroyed  the  property,  it 
was  held  to  be  a  question  for  the  jury  whether  she  had 
so  dealt  with  it  to  aid  her  husband  in  turning  it  to  profit, 
or  merely  to  conceal  his  guilt,  or  screen  him  from  the 
consequences.''  And  where  a  constable  went  with  a 
warrant  to  search  the  prisoner's  premises  for  stolen  iron, 
and  almost  immediately  after  he  was  taken  away  from 
the  premises,  at  the  conclusion  of  the  search,  his  wife 
carried  some  tin  under  her  cloak  from  a  warehouse  on 
the  premises,  Mr.  Justice  Coleridge,  on  the  trial  of  the 
prisoner  for  receiving  stolen  brass  and  tin,  held  that  it 

a  Rex  V.  Dewhirst,  2  Stark,  6U.  »  Reg.  v.  Banks,  1  Cox's  C.  C.  238. 

<=  Reg.  V.  M'Clarens,  3  Cox's  C.  C.  425;  and  see  also  Reg.  v.  Brook,  6  ib.  151. 


58  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

was  for  the  jury  to  consider  whether  her  possession  was 
not  the  prisoner's,  she  being  upon  the  premises,  and  all 
the  circumstances  being  taken  into  consideration,  and 
that  it  was  not  like  the  case  where  the  wife  is  in  pos- 
session of  stolen  property  at  a  distance  from  the  prem- 
ises of  her  husband.* 

3.  The  force  of  this  presumption  is  greatly  increased 
if  the  fruits  of  a  plurality  or  of  a  series  of  thefts  be  found 
in  the  prisoner's  possession,  or  if  the  property  stolen  con- 
sist of  a  number  of  miscellaneous  articles,  or  be  of  an  un- 
common kind,  or  from  its  value  or  other  circumstances  be 
inconsistent  with  or  unsuited  to  the  station  of  the  party. 
On  the  trial  of  two  men  at  Aberdeen,  autumn  circuit, 
1824,  it  appeared  that  a  carpenter's  workshop  at  Aber- 
deen was  broken  open  on  a  particular  night,  and  some 
tools  carried  off,  and  that  on  the  same  night  the  count- 
ing-houses of  Messrs.  Davidson,  and  of  Messrs.  Catto  and 
Co.,  in  different  parts  of  that  city,  were  broken  into,  and 
goods  and  money  to  a  considerable  extent  stolen.  The 
prisoners  were  met  at  seven  on  the  following  morning  in 
one  of  the  streets  of  Aberdeen,  at  a  distance  from  either 
of  the  places  of  depredation,  by  two  of  the  police.  Upon 
seeing  the  officers  they  began  to  run ;  and  being  pursued 
and  taken,  there  was  founfl  in  the  possession  of  each  a 
considerable  quantity  of  the  articles  taken  from  Catto 
and  Co  ,  but  none  of  the  things  taken  from  the  carpen- 
ter's shop  or  Davidson's.  But  in  Catto  and  Co.'s  ware- 
house were  found  a  brown  coat  and  other  articles  got 
from  Davidson's,  which  had  not  been  there  the  preced- 
ing evening  when  the  shop  was  locked  up  ;  and  in  David- 
son's were  found  the  tools  which  had  been  abstracted 
from  the  carpenter's.    Thus,  the  recent  possession  of  the 

a  Reg.  V.  Mansfield,  1  C.  <fe  M.  142. 


RECENT    POSSESSION    OF    THE    FRUITS   OF    CRLMt:.  59 

articles  stolen  from  Catto  and  Co.'s  proved  that  the  pris- 
oners were  the  depredators  in  that  warehouse;  while  the 
fact  of  the  articles  taken  from  Davidson's  having  been 
left  there,  connected  them  with  that  prior  housebreaking; 
while  again,  the  chisels  belonging  to  the  carpenter's  shop, 
found  in  Davidson's,  identified  the  persons  who  broke 
into  that  last  house  with  those  who  committed  the  orig- 
inal theft  at  the  carpenter's.  The  prisoners  were  con- 
victed of  all  the  thefts.*  A  still  stronger  case  of  the  same 
kind  occurred  at  Aberdeen,  in  A[)ril,  1826,  on  the  trial  of 
a  man  who  was  accused  of  no  fewer  than  nine  different 
acts  of  theft  by  housebreaking,  committed  in  and  around 
that  place  at  various  times  during  the  summer  of  1825  and 
the  following  winter.  No  suspicion  had  been  awakened 
against  the  prisoner,  who  was  a  carter,  living  an  indus- 
trious and  apparently  regular  life,  until  one  occasion, 
when  some  of  the  stolen  articles  having  been  detected  in 
a  broker's  shop,  and  traced  to  his  custody,  a  search  was 
made,  and  some  articles  from  all  the  houses  broken  open 
found  amongst  an  immense  mass  of  other  goods,  evi- 
dently stolen,  in  a  large  chest,  and  about  various  parts 
of  the  prisoner's  house.  Their  number  and  variety,  and 
the  place  where  they  were  found,  were  quite  sufficient  to 
convict  him  of  receiving  the  stolen  property;  but  as  they 
were  discovered  at  the  distance  of  many  months  from  the 
times  when  the  various  thefts  had  been  committed,  the 
difficulty  was  how  to  connect  him  with  the  actual  theft. 
The  charges  selected  for  trial  were  five  in  number,  and  as 
nearly  connected  with  each  other  in  point  of  time  as  pos- 
sible. In  none  of  them  was  the  prisoner  identified  as 
the  person  who  had  broken  into  the  houses,  although  the 

*  Rex  V.  Downie  and  Milne;  Alison's  Princ.  313;  2  Mascardus,  ut  giijira,  Concl. 

DCCCXXXI. 


60  WILLS    ON   CIRCUMSTANTIAL   EVIDENCE. 

thief  had  been  seen,  and  more  than  once  fired  at ;  but  in 
all  the  first  four  houses  which  had  been  broken  into  were 
discovered  some  of  the  articles  taken  from  the  others, 
and  in  the  prisoner's  custody  were  found  some  articles 
taken  from  them  all,  which  sufficiently  proved  that  all 
the  depredations  had  been  committed  by  one  person ; 
and  the  mark  of  an  iron  instrument  was  found  on  three  of 
the  windows  broken  open,  which  coincided  exactly  with  a 
chisel  left  in  the  last  house.  TWo  days  after  the  house- 
breaking of  that  house,  an  old  watch,  part  of  the  stolen 
property,  was  shown  by  the  prisoner  to  a  shopkeeper,  to 
whom  he  soon  afterwards  sold  it,  and  by  him  delivered 
up  to  the  officers.  Upon  this  evidence  the  prisoner  was 
convicted  of  all  the  charges  of  housebreaking.* 

4.  The  recent  possession  of  stolen  property  may  some- 
times be  referable  not  to  the  crime  of  theft,  but  to  that 
of  having  received  it  with  a  guilty  knowledge  of  its 
having  been  stolen.  Four  persons  were  found  guilty  of 
housebreaking  on  proof  of  the  recent  possession  of  the 
goods,  and  narrowly  escaped  execution,  the  offence  at 
that  time  being  capital;  but  it  was  afterwards  ascertained 
that  one  of  them,  who  had  long  been  known  as  a  receiver 
of  stolen  goods,  knew  nothing  of  the  robbery  until  after 
it  had  been  committed,  and  had  purchased  the  goods 
from  the  real  thieves  the  day  after  the  robbery.''  The 
difficulty  of  referring  the  act  of  possession  specifically  to 
one  of  those  crimes  frequently  led  to  the  failure  of  jus- 
tice ;  thus,  where  stolen  goods  were  found  shortly  after 
the  theft,  concealed  in  an  old  engine-house,  and  the  place 
being  watched,  the  prisoners  were  seen  to  go  there  and 
take  them  away,  but,  being  indicted  as  receivers,  they 

*  Rex  V.  Bowman,  Alison's  Princ.  314. 

b  Rex  V.  Ellis,  Sessions  Papers  &  A.  R.  1831. 


RECENT   POSSESSION   OF    THE    FRUITS   OF    CRIME.  61 

were  acquitted ;  Mr.  Justice  Patteson  being  of  opinion 
that  this  seemed  to  be  evidence  rather  of  a  stealing  than 
a  receiving.''  But  these  distinctions  are  now  abolished 
by  St.  11  &  12  Vict.  c.  46,  s.  3,  which  provides  that  in 
every  indictment  for  feloniously  stealing,  a  count  may  be 
added  for  feloniously  receiving  the  same  property,  know- 
ing it  to  have  been  stolen,  and  that  in  an  indictment  for 
feloniously  receiving,  a  count  may  be  added  for  feloni- 
ously stealing  the  same  property. 

It  is  not  necessary  that  the  receiver  of  stolen  property 
should  have  obtained  a  guilty  knowledge  by  direct  infor- 
mation ;  it  is  sufficient  if  the  circumstances  under  which 
it  was  received  were  such  as  must  have  satisfied  any  rea- 
sonable mind  that  it  must  have  been  dishonestly  obtained; 
as,  if  he  purchased  it  at  an  undue  value,''  at  suspicious 
and  unseasonable  times,  or  from  persons  who  in  the  ordi- 
nary course  of  things  could  not  fairly  be  considered  as 
the  unsuspected  owners  of  property  of  the  particular 
description,  or  has  secreted  or  endeavored  to  secrete  it, 
or  attempted  to  explain  the  manner  of  acquisition  by 
falsehood  or  prevarication."" 

5.  The  possession  of  stolen  goods  recently  after  the 
loss  of  them  may  be  indicative  not  merely  of  the  offence 
of  larceny,  or  of  receiving  with  guilty  knowledge,  but  of 
any  other  more  aggravated  crime  which  has  been  con- 
nected with  theft.  Upon  an  indictment  for  arson,  proof 
that  property  which  was  in  the  house  at  the  time  it  was 
burnt  was  soon  afterwards  found  in  the  possession  of  the 
prisoner  was  held  to  raise  a  presumption  that  he  was 
present  and  concerned  in  the  offence.'^     This  particular 

a  Reg.  V.  Duisley,  6  C.  &  P.  899;  and  see  Rex  v.  Dyer,  2  East.  P.  0.  767;  and 
Rex  0.  Howell,  ib.  768. 
b  Hale's  P.  C.  619.  "  See  Alison's  Princ.  330. 

^  2  Rex  V.  Rickman,  East's  P.  C.  1035;  and  see  Rex  v.  Fuller,  R.  4  R.  303. 


62  WILLS    ON   CIRCUMSTANTIAL   EVIDENCE. 

f'dct  of  presumption  commonly  forms  also  a  material  ele- 
ment of  evidence  in  cases  of  murder ;  which  special  ap- 
plication of  it  has  often  been  emphatically  recognized.  It 
is  upon  the  same  principle  that  a  sudden  and  otherwise 
inexplicable  transition  from  a  state  of  indigence  and  a 
consequent  change  of  habits,  or  a  profuse  or  unwonted 
expenditure  inconsistent  with  the  position  in  life  of  the 
party,  is  sometimes  a  circumstance  extremely  unfavor- 
able to  the  supposition  of  innocence.* 

But  the  rule  must  be  applied  with  discrimination,  for 
the  bare  possession  of  stolen  property,  though  recent, 
uncorroborated  by  other  evidence,  is  sometimes  fallacious 
and  dangerous  as  a  criterion  of  guilt.  Sir  Matthew  Hale 
lays  it  down,  that  "  if  a  horse  be  stolen  from  A.,  and  the 
same  day  B.  be  found  upon  him,  it  is  a  strong  presump- 
tion that  B.  stole  him ;  yet,"  adds  that  excellent  lawyer, 
"  I  do  remember  before  a  learned  and  very  wary  judge, 
in  such  an  instance  B.  was  condemned  and  executed  at 
Oxford  Assizes,  and  yet  within  two  assizes  after,  C, 
being  apprehended  for  another  robbery,  and  convicted, 
upon  his  judgment  and  execution  confessed  he  was  the 
man  that  stole  the  horse,  and  being  closely  pursued, 
desired  B.,  a  stranger,  to  walk  his  horse  for  him,  while 
he  turned  aside  upon  a  necessary  occasion,  and  escaped  ; 
and  B.  was  apprehended  with  the  horse  and  died  inno- 
cently."^ A  very  similar  case  occurred  at  the  Surrey 
Summer  Assizes,  1827,  where  a  young  man  was  con- 
victed of  stealing  two  oxen.  The  prisoner,  having  fin- 
ished his  apprenticeship  to  a  butcher  at  Monkwearmouth, 
went  to  visit  an  uncle  at  Portsmouth,  from  whence  he  set 
out  to  return  to*  London.     On  the  road  between  Guild- 

-'■  Rex  V.  Burdock,  Bristol  Summ.  Ass.  1835;  Rex  v.  Varnham  and  others,  in/ni. 
"  2  Hale's  P.  C.  ch.  39. 


RECENT   POSSSSSION    OF    THE    FRUITS   OF    CRLMK.  (]?> 

ford  and  London,  about  three  o'clock  in  the  morning,  lie 
overtook  a  man  riding  upon  a  pony  and  driving  two  oxen, 
who  finding  that  he  was  going  to  London,  offered  him  five 
shillings  to  drive  them  for  him  to  London,  which  h^- 
agreed  to  do,  the  man  engaging  to  meet  him  at  Westmin- 
ster Bridge.     At  Wandsworth  he  was  apprehended  by 
the  prosecutor's  son,  and  charged  with  stealing  the  oxen. 
On  his  apprehension  he  assumed  a  false  name,  under 
which  he  was  tried,  to  conceal  his  situation  from  his 
friends,  and  convicted,  but  on  a  representation  of  the 
circumstances  he  received  a  pardon,  when  on  the  point  of 
being  transported  for  life.''     He  had  been  the  dupe  of  the 
real  thief,  who,  finding  himself  closely  pursued,  had  thus 
contrived  to  rid  himself  of  the  possession  of  the  cattle. 
6.  The  rule  under  discussion  is  occasionally  attended 
with  uncertainty  in  its  application,  from  the  difficulty  at- 
tendant upon  the  positive  identification  of  articles  of  prop- 
erty alleged  to  have  been  stolen ;  and  it  clearly  ought 
never  to  be  applied  where  there  is  reasonable  ground  to 
conclude  that  the  witnesses  may  be  mistaken,  or  where 
from  any  other  cause  identity  is  not  satisfactorily  estab- 
lished.    But  the  rule  is  nevertheless  fairly  and  properly 
applied  in  circumstances  where,  though  positive  identi- 
fication is  impossible,  the  possession  of  the  property  can- 
not without  violence  to  every  reasonable  hypothesis  but 
be  considered  of  a  guilty  character ;  as  in  the  case  of  per- 
sons employed  in  carrying  tea,  sugar,  tobacco,  and  other 
like  articles  from  ships  and  wharfs.     Cases  have  fre- 
quently occurred  of  convictions  of  larceny,  in  such  cir- 
cumstances, upon  evidence  that  the  parties  were  detected 
with  property  of  the  same  kind  upon  them  recently  after 
coming  from  such  places,  although  the  identity  of  the 

*  Rex  V.  Gill,  Sessions  Papers  and  A.  R.  1827. 


64  WILLS    ON   CIRCUMSTANTIAL   EVIDENCE. 

property  as  belonging  to  any  particular  person  could  no 
otherwise  be  proved.''  On  this  principle  two  men  were 
convicted  of  larceny  upon  evidence  that  the  prosecutor's 
soap-manufactory,  near  Glasgow,  had  been  broken  into 
in  the  night  and  robbed  of  about  120  ft)s.  of  yellow  soap, 
and  that  the  prisoners  were  met  on  the  same  night,  about 
eleven  o'clock,  by  the  watchman,  near  the  centre  of  the 
city,"  from  whom  they  attempted  to  escape,  one  bearing 
on  his  back  forty  pounds  of  soap  of  the  same  size,  shape, 
and  make  as  that  stolen  from  the  prosecutor's  premises, 
and  the  other  with  his  clothes  soiled  over  with  the 
same  substance,  though  the  property  could  not  be  more 
distinctly  identified.''  It  is  seldom,  however,  that  juries 
are  required  to  determine  upon  the  effect  of  evidence  of 
the  mere  recent  possession  of  stolen  property ;  from  the 
very  nature  of  the  case,  the  fact  is  generally  accompanied 
by  other  corroborative  or  explanatory  circumstances  of 
presumption.  If  the  party  have  secreted  the  property, 
if  he  deny  that  it  is  in  his  possession,  and  such  denial 
be  discovered  to  be  false,  if  he  cannot  show  how  he  be- 
come possessed  of  it,  if  he  give  false,  incredible,  or  in- 
consistent accounts  of  the  manner  in  which  he  acquired 
it,  as  that  he  found  it,  or  that  it  had  been  given  or  sold 
to  him  by  a  stranger,  or  left  at  his  house,  if  he  have 
disposed  of  or  attempted  to  dispose  of  it  at  an  unrea- 
sonably low  price,  if  he  have  absconded  or  endeavored 
to  escape  from  justice,  if  other  stolen  property,  or  house- 
breaking tools,  or  other  instruments  of  crime  be  found 
in  his  possession,  if  he  were  seen  near  the  spot  at  or 
about  the  time  when  the  act  was  committed,  or  if  any 
article  belonging  to  him  be  found  at  or  near  the  place 

*  2  East's  P.  C.  1035. 

*  Rex  V.  M'Kechnie  and  Tolmie,  Alison's  Princ.  322. 


UNEXPLAINED    APPEARANCES   OF    SUSPICION.  G5 

where  the  theft  was  committed,  at  or  about  the  time  of 
the  commission  of  the  offence,  if  the  impression  of  his 
shoes  or  other  articles  of  apparel  correspond  with  marks 
left  by  the  thieves,  if  he  have  attempted  to  obliterate 
from  the  articles  in  question  marks  of  identity,  or  to 
tamper  with  the  parties  or  the  officers  of  justice,  these, 
and  all  like  circumstances,  are  justly  considered  as 
throwing  light  upon  and  explaining  the  fact  of  possession, 
and  render  it  morally  certain  that  such  possession  can 
be  referable  only  to  a  criminal  origin,  and  cannot  other- 
wise be  rationally  accounted  for. 

Section  5. 

unexplained   appearances   of    suspicion,   and   attempts 
to  account  for  them  by  false  representations. 

As  a  general  rule,  to  which  the  exceptions  can  be  but 
rare,  it  is  a  reasonable  conclusion,  that  an  innocent  party 
can  explain  suspicious  or  unusual  appearances,  connected 
with  his  person,  dress,  or  conduct;  and  that  the  desire  of 
self-preservation,  if  not  a  regard  for  truth,  will  prompt 
him  to  do  so.  The  ingenuous  and  satisfactory  explanation 
of  cu'cumstances  of  apparent  suspicion  always  operates 
pow^erftdly  in  favor  of  the  accused,  and  obtains  for  him 
more  ready  credence  when  the  explanation  may  not  be 
easily  verified.  On  the  other  hand,  the  force  of  suspi- 
cious circumstances  is  augmented  whenever  the  party 
attempts  no  explanation  of  facts  which  he  may  reasonably 
be  presumed  to  be  able  and  interested  to  explain.  An 
old  man  on  his  way  home  from  market,  where  he  had 
stayed  late,  was  attacked,  thrown  down  and  robbed  by 
three  men,  one  of  whom  he  wounded  in  the  struggle 


60  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

with  a  clasp-knife.  Upon  the  apprehension  of  one  of  the 
robbers  at  the  house  of  his  mother,  he  was  dressed  in  a 
new  pair  of  trousers,  and  the  constable  found  in  a  room 
up  stairs,  between  the  bed  and  the  mattress,  a  pair  o 
trousers  with  two  long  cuts  in  one  thigh,  one  of  which 
had  penetrated  through  the  lining,  and  was  stained  wdth 
blood  at  that  spot ;  and  the  holes  had  been  sewed  with 
thread  which  was  not  discolored,  showing  that  the 
1)lood  must  have  been  applied  to  the  cloth  previous  to 
the  repair ;  and  a  corresponding  cut  bound  over  with 
plasters  was  found  on  the  prisoner's  thigh.  He  refused 
to  give  any  explanation  of  the  wound  or  of  the  cuts  in 
the  garments,  and  was  convicted  and  transported.* 

But  circumstances  of  suspicion  merely,  without  more 
conclusive  evidence,  are  not  sufficient  to  justify  convic- 
tion, even  though  the  party  offer  no  explanation  of  them. 
Two  women  were  indicted  for  coloring  a  counterfeit 
shilling  and  sixpence,  and  a  man  as  counselling  them ; 
and  the  evidence  against  him  was  that  he  visited  the  wo- 
men once  or  twice  a  week,  and  that  the  rattling  of  copper 
money  was  heard  while  he  was  with  them,  that  once  he 
was  counting  something  just  after  he  came  out,  that  on 
going  to  the  room  just  after  their  apprehension,  he  re- 
sisted being  stopped,  and  jumped  over  a  wall  to  escape, 
and  that  there  were  found  upon  him  a  bad  three-shillinfr- 
piece  and  five  bad  sixpences  :  upon  a  case  reserved,  the 
judges  thought  the  evidence  too  slight  to  convict  him.'' 

So  natural  and  forcible  is  this  rule  of  presumption,  that 
the  guilty  are  instinctively  compelled  to  endeavor  to  evade 
its  application,  by  giving  some  explanation  or  interpre- 
tation of  adverse  facts,  consistent,  if  true,  with  innocence; 

a  Rex  V.  Dawtrey,  York  Sp.  Ass.  1841. 

*"  Rex  V.  Isaacs,  2  Russell,  by  Greaves,  729. 


UNEXPLAINED   APPEARANCES   OF    SUSPICION.  t)7 

but  its  force  is  commonly  aggravated  by  the  improba- 
bility, or  absurdity  even,  of  such  explanations,  or  the 
inconsistency  of  them  with  admitted  or  incontrovertibh' 
facts.  All  such  false,  incredible,  or  contradictory  state- 
ments, if  disproved  or  disbelieved,  are  not  simply  neu- 
tralized, but  become  of  a  substantive  inculpatory  effect. 
But  even  in  such  circumstances,  however,  guilt  cannot  be 
safely  inferred,  unless  there  has  been  laid  such  a  sub- 
stratum of  evidence,  direct  or  circumstantial,  as  creates 
a  strong  independent  prima  facie  case  against  the  pris- 
oner.'^ On  a  trial  for  the  murder  of  a  female  by  poison, 
whom  the  prisoner  alleged  to  have  died  from  the  effects 
of  a  draught  taken  by  her  in  anger  during  an  alterca- 
tion between  them,  Mr.  Baron  Parke  told  the  jury  that 
it  was  for  them  to  say  whether  the  falsehoods  the  pris- 
oner had  told  did  not  show  that  he  was  conscious  that 
he  had  been  guilty  of  some  act  that  required  conceal- 
ment; that  it  was  very  true  he  might  not  wish  it  to  be 
known  he  had  been  visiting  a  woman  who,  there  was 
good  reason  to  believe,  had  formerly  been  his  mistress ; 
but  that,  if  he  was  an  innocent  man,  and  had  been  pres- 
ent at  the  death,  one  would  have  supposed  he  would 
have  disclosed  it  immediately  and  called  in  some  assist- 
ance. They  had  here  two  untruths  :  that  he  meant  to 
dine  at  the  west  end  of  the  town  and  did  not,  and  his 
denial  that  he  had  been  out  of  London  that  evening ; 
these,  he  said,  were  very  material  matters  for  their  in- 
quiry, bearing  in  mind  that  upon  the  evidence  there  was 
a  very  ample  case  for  grave  consideration,  to  show  that 
the  deceased  died  of  prussic  acid,  and  that  the  prisoner 
was  present  in  the  house  at  the  moment  of  that  death. 
His  lordship  added,  that  if  the  prisoner's  representation 

»  Per  Mr.  Justice  Littledale  in  Rex  i>.  Clark,  Warwick  Summ.  Ass.  1831. 


68  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

had  been  true,  that  the  deceased  had  poisoned  herself,  one 
would  have  supposed  that  he  would  have  taken  the  first 
opportunity,  having  been  present  at  the  time  this  occurred, 
of  exonerating  himself  from  it,  by  making  this  declara- 
tion to  the  first  person  he  met ;  one  would  expect,  if  he 
had  been  a  man  of  the  least  cordial  feeling,  he  would 
have  waited  to  see  whether  it  was  true  or  not  that  she 
had  taken  this  poison,  and  called  for  assistance,  instead 
of  which,  he  is  proved  to  have  gone  in  a  short  time  to 
London,  and  when  he  got  to  London  he  is  proved  to  have 
denied  altogether  that  he  had  been  there.  You  must 
judge,  said  the  learned  Baron,  of  the  truth  of  the  case 
against  a  person  by  all  his  conduct  taken  together.** 

Allowance  must  nevertheless  be  made  for  the  weak- 
ness of  human  nature,  and  for  the  difficulties  which  may 
attend  the  proof  of  circumstances  of  exculpation ; ''  and 
care  must  be  taken  that  circumstances  are  not  errone- 
ously assumed  to  be  suspicious  without  sufficient  reason.*' 

Section  6. 
indirect  confessional  evidence. 

Although  the  subject  of  direct  confession  does  not  fall 
within  the  province  of  this  essay,  it  is  necessary  to  ad- 
vert to  some  of  the  principal  rules  which  relate  to  that 
important  head  of  moral  evidence,  because  they  are  of 
great  moment  in  their  application  to  such  particulars  of 
circumstantial  evidence  as  are  only  indirectly  in  the  na- 
ture of  confessional  evidence. 

A  voluntary  confession  of  guilt,  if  it  be  full,  con- 

»  Reg.  V.  Tawell,  Aylesbury  Sp.  Ass.  1845.    - 

0  See  Rex  v.  Gill,  ut  supra,  62,  and  2  Hale's  P.  C.  ch.  39. 

*  See  Rex  v.  Looker,  and  Rex  v.  Thornton,  infra. 


INDIRECT   CONFESSIONAL    EVIDENCE.  09 

sistent,  and  probable,  is  justly  regarded  as  evidence  of 
the  highest  and  most  satisfactory  nature."  Self-love, 
the  mainspring  of  human  conduct,  will  usually  prevent 
a  rational  being  from  making  admissions  prejudicial  to 
his  interest  and  safety,  unless  when  caused  by  the 
promptings  of  truth  and  conscience. 

By  the  law  of  England,  a  voluntary  and  unsuspected 
confession  is  clearly  sufficient  to  warrant  conviction, 
wherever  there  is  independent  proof  of  the  corpus  delicti. 
According  to  some  authorities,  confession  alone  is  a 
sufficient  ground  for  conviction,  even  in  the  absence  of 
any  such  independent  evidence ;  but  the  contrary  opin- 
ion is  most  in  accordance  with  the  general  principles  of 
reason  and  justice,  the  opinions  of  the  best  writers  on 
criminal  jurisprudence,  and  the  practice  of  other  en- 
lightened nations.*'  Nor  are  the  cases  adduced  in  sup- 
port of  the  doctrine  in  question  very  decisive,  since  in 
all  of  them  there  appears  to  have  been  some  evidence, 
though  slight,  of  confirmatory  circumstances,  independ- 
ently of  the  confession.'' 

Judicial  history  presents  innumerable  warnings  of  the 
danger  of  placing  implicit  dependence  upon  this  kind  of 
self-condemnatory  evidence,  even  where  it  is  exempt 
from  all  suspicion  of  coercion,  physical  or  moral,  or  other 
sinister  influence.  How  greatly  then  must  such  danger 
be  aggravated,  where  confession  constitutes  the  only 
evidence  of  the  fact  of  a  corpus  delicti ;  and  how  incal- 


*  3  Mascardus  ut  supra,  Concl.  xv,  xvi ;  Rex  v.  Warrickshall,  1  Leach's  C.  C.  299 : 
Greenleaf's  L.  of  Ev.  s.  219. 

*>  Best  on  Pres.  330,  and  the  cases  cited;  1  Greenleaf's  L.  of  Ev.  s.  217;  Alison's 
Princ.  325 ;  Code  Penal  d'Autriche,  partie  1,  s.  2,  ch.  x. 

<=  Kex  V.  Fisher,  1  Leach,  286  ;  Rex  i'.  Eldridge,  R.  &  R.  441 ;  Rex  v.  Faulkner, 
ib.  481;  Rex  v.  White,  ib.  508;  Rex  v.  Tippett,  ih.  509;  1  Greenleaf's  L.  of  Ev. 
s.  217. 


70  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

culably  greater  in  such  cases  is  the  necessity  for  the 
most  rigorous  scrutiny  of  all  collateral  circumstances 
which  may  actuate  the  party  to  make  a  false  confession ! 
The  agonies  of  torture,  the  dread  of  their  infliction,  the 
hope  of  escaping  the  rigors  of  slavery  or  the  hardships 
of  military  service,  a  weariness  of  existence,  self-delu- 
sion, the  desire  to  shield  a  guilty  relative  or  friend  from 
the  penalties  of  justice,'*  the  impulses  of  despair  from 
the  pressure  of  strong  and  apparently  incontrovertible 
presumptions  of  guilt,  the  dread  of  unmerited  punish- 
ment and  disgrace,  the  hope  of  pardon,  these  and  numer- 
ous other  inducements  have  not  unfrequently  operated 
to  produce  unfounded  confessions  of  guilt. 

Innumerable  are  the  instances  on  record  of  confession, 
extracted  "  by  the  deceitful  and  dangerous  experiment 
of  the  criminal  question,"  ^  of  offences  which  were  never 
committed,  or  not  committed  by  the  persons  making 
confession.''  Nor  have  such  instances  been  wanting  in 
other  parts  of  Europe  even  in  the  present  century. 

When  Felton,  upon  his  examination  at  the  Oouncil 
Board,  declared,  as  he  had  always  done,  that  no  man 
living  had  instigated  him  to  the  murder  of  the  Duke  of 
Buckingham,  the  Bishop  of  London  said  to  him,  "  If 
you  will  not  confess,  you  must  go  to  the  rack."  The 
man  replied,  "  If  it  must  be  so^.  I  know  not  whom  I 
may  accuse  in  the  extremity  of  the  torture ;  Bishop 
Laud,  perhaps,  or  any  lord  at  this  Board."  ^  "  Sound 
sense,"  observed  the  excellent  Sir  Michael  Foster,  "  in 
the  mouth  of  an  enthusiast  and  a  ruffian."  ® 

»  1  Chitty's  Crim.  L.  85.  ^  3  Gibbon's  Decline  and  Fall,  ch.  xvii. 

"  Jardine  on  the  Use  of  Torture  in  the  C.  L.  of  England,  3,  6;  and  see  Fortescue 
De  Laudibus  Legum  Anglia),  eh.  22. 

*  1  Rushworth's  Collections,  688. 

•  Foster's  C.  L.  244,  3d  ed. 


INDIRECT   CONFESSIONAL    EVIDENCE.  71 

Not  less  repugnant  to  policy,  justice,  and  humanity, 
is  the  moral  torture  to  which  in  some  (perhaps  in  most) 
of  the  nations  of  Europe,  persons  suspected  of  crime  are 
subjected,  by  means  of  searching,  rigorous,  and  insidious 
examinations,  conducted  by  skillful  adepts  in  judicial 
tactics,  and  accompanied  sometimes  even  by  dramatic 
circumstances  of  terror  and  intimidation.* 

Lord  Clarendon  gives  a  circumstantial  account  of  the 
confession  of  a  Frenchman  named  Hubert,  after  the  fire 
of  London,  that  he  had  set  the  first  house  on  fire,  and 
had  been  hired  in  Paris  a  year  before  to  do  it.  "  Though," 
says  he,  "the  Lord  Chief  Justice  told  the  King  that  'all 
his  discourse  was  so  disjointed  he  did  not  believe  him 
guilty,'  yet  upon  his  own  confession  the  jury  found  him 
guilty,  and  he  was  executed  accordingly :"  the  historian 
adds,  "  though  no  man  could  imagine  any  reason  why  a 
man  should  so  desperately  throw  away  his  life,  which 
he  might  have  saved  though  he  had  been  guilty,  since 
he  was  accused  only  upon  his  own  confession,  yet  neither 
the  judges  nor  any  present  at  the  trial  did  believe  him 
guilty,  but  that  he  was  a  poor  distracted  wretch,  weary 
of  life,  and  chose  to  part  with  it  this  way."  ^ 

A  very  remarkable  case  of  this  nature  was  that  of  the 
two  Boorns,  convicted  in  the  Supreme  Court  of  Vermont 
in  September  term,  1819,  of  the  murder  of  Russell  Col- 
^in,  May  10,  1812.  It  appeared  that  Colvin,  who  was 
the  brother-in-law  of  the  prisoners,  was  a  person  of  a 
weak  and  not  perfectly  sound  mind ;  that  he  was  con- 
sidered burdensome  to  the  family  of  the  prisoners,  Avho 

*  See  the  case  of  Riembaur,  a  Bavarian  priest,  charged  with  murder,  in  Narra- 
tives of  Remarkable  Criminal  Trials,  by  Feuerbach,  ut  supra. 

*>  3  Life  and  Continuation,  etc.,  94  [Clarendon,  ed.  1824] ;  and  see  2  Mem.  of 
Romilly,  182,  where  it  is  stated  that  an  innocent  man  was  executed  erroneously  by 
the  sentence  of  a  court-martial,  on  a  charge  of  mutiny. 


72  WILLS   ON    CIllCUMSTAJSTIAL    EVIDENCE. 

were  obliged  to  support  him ;  that  on  the  day  of  his  dis- 
appearance, being  in  a  distant  field,  where  the  prisoners 
were  at  work,  a  violent  quarrel  broke  out  between  them, 
and  that  one  of  them  struck  him  a  violent  blow  on  the 
back  of  the  head  with  a  club,  which  felled  him  to  the 
ground.  Some  suspicions  arose,  at  that  time,  that  he 
was  murdered :  which  were  increased  by  the  finding  of 
his  hat,  in  the  same  field,  a  few  months  afterwards. 
These  suspicions  in  process  of  time  subsided ;  but  in 
1819,  one  of  the  neighbors  having  repeatedly  dreamed  of 
the  murder,  with  great  minuteness  of  circumstances,  both 
in  regard  to  his  death  and  the  concealment  of  his  remains, 
the  prisoners  were  vehemently  accused,  and  generally 
believed  guilty  of  the  murder.  Upon  strict  search,  the 
pocket-knife  of  Colvin,  and  a  button  of  his  clothes,  were 
found  in  an  old  open  cellar  in  the  same  field ;  and  in  a 
hollow  stump,  not  many  rods  from  it,  were  discovered 
two  nails  and  a  number  of  bones  believed  to  be  those  of 
a  man.  Upon  this  evidence,  together  with  the  deliberate 
confession  of  murder  and  concealment  of  the  body  in 
those  places,  they  were  convicted  and  sentenced  to  die. 
On  the  same  day  they  applied  to  the  legislature  for  a 
commutation  of  the  sentence  of  death,  to  that  of  per- 
petual imprisonment;  which  as  to  one  only  of  them  was 
granted.  The  confession  being  now  withdrawn  and  con- 
tradicted, and  a  reward  offered  for  the  discovery  of  the 
missing  man,  he  was  found  in  New  Jersey,  and  returned 
home  in  time  to  prevent  the  execution.  He  had  fled  for 
fear  that  they  would  kill  him.  The  bones  were  those  of 
an  animal.  The  prisoners  had  been  advised  by  some 
misjudging  friends,  that,  as  they  would  certainly  be  con- 
victed, upon  the  circumstances  proved,  their  only  chance 
for  life  was  by  a  commutation  of  punishment,  and  that 


INDIRECT    CONFESSIONAL   EVIDENCE.  73 

this  depended  on  their  making  a  penitential  confession. 
and  thereupon  obtaining  a  recommendation  to  mercy." 

The  State  Trials  contain  numerous  confessions  of 
witchcraft,  and  abound  with  absurd  and  incredible  de- 
tails of  communications  with  evil  spirits,  which  only  show 
that  the  parties  were  either  impostors,  or  the  involuntary 
victims  of  invincible  self-delusion.  One  kind  of  false 
confession,  that  namely  of  being  a  deserter,  is  so  com- 
mon as  to  have  been  made  the  subject  of  penal  repres- 
sion by  rendering  the  offender  liable  to  be  treated  as  a 
rogue  and  vagabond,  and  to  be  imprisoned  for  any  period 
not  exceeding  three  months.'' 

A  distinguished  foreign  lawyer  well  observes,  that 
"whilst  such  anomalous  cases  ought  to  render  courts 
and  juries  at  all  times  extremely  watchful  of  every  fact 
attendant  on  confessions  of  guilt,  the  cases  should  never 
be  invoked  or  so  urged  by  the  accused's  counsel  as  to  in- 
validate indiscriminately  all  confessions  put  to  the  jury, 
thus  repudiating  those  salutary  distinctions  which  the 
Coiirt,  in  the  judicious  exercise  of  its  duty,  shall  be  en- 
abled to  make.  Such  a  use  of  these  anomalies,  which 
should  be  regarded  as  mere  exceptions,  and  which  should 
speak  only  in  the  voice  of  warning,  is  no  less  unprofes- 
sional than  impolitic,  and  should  be  regarded  as  offen- 
sive to  the  intelligence  both  of  the  Court  and  jury."*" 

It  is  essential  to  justice,  that  a  confessional  state- 
ment, if  it  be  consistent,  probable,  and  uncontradicted, 
should  be  taken  together,  and  not  distorted,  or  but  par- 
tially adopted.  "  It  is  a  rule  of  law,"  said  Lord  Ellen- 
borough,  "  that  when  evidence  is  given  of  what  a  party 

^  1  Greenleaf's  L.  of  Ev.  s.  214,-  and  see  the  ease  of  the  Perrj-s,  infra,  and  an 
American  case  in  Wharton's  C.  L.  of  the  U.  S.  315. 

"  Stat.  20  Vict.  13,  c.  49.  <=  1  Hoffman's  Course  of  Legal  Study,  367. 


74  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

has  said  or  sworn,  all  of  it  is  evidence  (subject  to  the 
consideration  of  the  jury,  however,  as  to  its  truth), 
coming,  as  it  does,  in  one  entire  form  before  them ;  but 
you  may  still  judge  to  what  parts  of  the  whole  you  can 
give  credit ;  and  also  whether  that  part  which  appears 
to  confirm  and  fix  the  charge  does  not  outweigh  that 
which  contains  the  exculpation."  *  On  the  trial  of  a  man 
for  a  murder  committed  twenty-four  years  before,  the 
principal  inculpatory  evidence  consisted  of  his  confes- 
sion, which  stated  in  substance  that  he  was  present  at 
the  murder,  but  went  to  the  spot  without  any  previous 
knowledge  that  a  murder  was  intended,  and  took  no 
part  in  it.  It  was  urged  that  the  prisoner's  concurrence 
must  be  presumed  from  his  presence  at  the  murder,  but 
Mr.  Justice  Littledale  held  that  the  statement  must  be 
taken  as  a  whole ;  and  that  so  qualified,  it  did  not  in 
fairness  amount  to  an  admission  of  the  guilt  of  murder;" 
and  where  the  prisoner's  declaration,  in  which  she  as- 
serted her  innocence,  was  given  in  evidence,  and  there 
w^as  evidence  of  other  statements  confessing  guilt,  ^he 
judge  left  the  whole  of  the  conflicting  statements  to  the 
jury  for  their  consideration.  But  where  there  is,  in  the 
whole  case,  no  evidence  but  what  is  compatible  with 
the  assertion  of  innocence,  adduced  in  evidence  for  the 
prosecution,  the  judge  will  direct  an  acquittal.''  In  the 
case  of  Strahan  and  Paul,  it  was  unsuccessfully  con- 
tended, that  the  admission  made  by  the  prisoner  Strahan 
must  be  taken  to  the  whole  extent  to  which  it  was  made, 
and  that  it  would  then  fairly  and  reasonably  lead  to  the 
conclusion  that  he  had  known  nothing  of  the  fraudulent 


»  Rex  V.  Lord  Cochrane  and  others,  Gurney's  Rep.  479. 
"  Rex  V.  Clewes,  4  C.  &  P.  221,  and  Short-hand  Rep. 
«  Rex  V.  Jones,  2  C.  &  P.  629. 


INDIRECT   CONFESSIONAL    EVIDENCE.  75 

traiivsactions  in  which  the  other  prisoner  was  the  leading 
actor  in  March,  1854  ;  but  Mr.  Baron  Alderson  told  the 
jury  that  they  were  not  bound  to  believe  either  the 
whole  or  any  part  of  the  statement  made  by  the  prisoner 
Strahan,  and  that  they  must  take  it  with  this  consider- 
ation as  one  of  the  circumstances  of  the  case  and  no  more.* 
Of  the  credit  and  effect  due  to  a  confessional  statement 
the  jury  are  the  sole  judges,  and  if  it  is  inconsistent,  im- 
probable, or  incredible,  or  is  contradicted  or  discredited  by 
other  evidence,  or  is  the  emanation  of  a  weak  or  excited 
state  of  mind,  the  jury  may  exercise  their  discretion  in 
rejecting  it,  either  wholly  or  in  part,  whether  the  rejected 
part  make  for  or  against  the  prisoner.^  On  the  trial  of  a 
man  for  setting  fire  to  a  stack  of  hay,  it  appeared  that  be- 
tween two  and  three  o'clock  in  the  morning  a  police  con- 
stable, attracted  by  the  cry  of  fire,  went  to  the  spot,  close 
to  which  he  met  the  prisoner,  who  told  him  that  a  hay- 
stack was  on  fire,  and  that  he  was  going  to  London ;  the 
policeman  asked  him  to  give  information  of  the  fire  to  any 
other  policeman  he  might  meet,  and  request  him  to  come 
and  assist.  Shortly  afterwards,  on  his  way  towards  Lon- 
don, the  prisoner  met  a  serjeant  of  police,  whom  he  in- 
formed of  the  fire,  stating  that  he  was  the  man  who  set 
the  stack  on  fire,  upon  which  he  was  taken  into  custody. 
The  Serjeant  of  police,  on  cross-examination  by  the  pris- 
oner, stated  that  the  magistrates  entertained  an  opinion 
that  he  was  insane,  and  directed  inquiries  to  be  made, 
from  which  it  appeared  that  he  had  before  been  charged 
with  some  offence,  and  acquitted  on  the  ground  of  in- 
sanity. When  apprehended,  the  prisoner  appeared  under 

»  C.  C.  C.  Oct.  1855. 

i"  Rex  V.  Higgins,  3  C.  &  P.  603 :  Rex  v.  Steptoe,  4  C.  A  P.  397;  1  Greenleaf's  L. 
of  Ev.  s.  218. 


76  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

great  excitement ;  and  upon  his  trial  he  alleged  that  he 
had  been  confined  two  years  in  a  lunatic  asylum,  and 
had  been  liberated  only  about  a  year  ago ;  that  his  mind 
had  been  wandering  for  some  time  ;  and  that  passing  by 
the  place  at  the  time  of  the  fire,  he  was  induced,  in  a 
moment  of  delirium,  to  make  this  groundless  charge 
against  himself.  He  begged  the  Court  to  explain  to  the 
jury  the  different  result  that  would  follow  from  his  being 
acquitted  on  the  ground  of  insanity,  and  an  unconditional 
acquittal ;  and  said  that  rather  than  the  former  verdict 
should  be  returned,  which  would  probably  have  the  effect 
of  immuring  him  in  a  lunatic  asylum  for  the  rest  of  his 
life,  he  would  retract  his  plea  of  not  guilty,  and  plead 
guilty  to  the  charge.  Mr.  Justice  Williams,  in  summing 
up,  remarked  that  there  did  not  appear  to  be  the  least 
evidence  against  the  prisoner  except  his  own  statement; 
and  that  it  was  for  the  jury  to  say  under  all  the  cir- 
cumstances whether  they  believed  that  statement  was 
founded  in  fact,  or  whether  it  was,  as  the  prisoner 
alleged,  merely  the  effect  of  an  excited  imagination  and 
weak  mind.     The  prisoner  was  acquitted.* 

It  is  obvious  that  every  caution  observed  in  the  recep- 
tion of  evidence  of  a  direct  confession  ought  to  be  more 
especially  applied  in  the  admission  and  estimation  of  the 
analogous  evidence  of  statements  which  are  only  indi- 
rectly in  the  nature  of  confessional  evidence  ;  since  such 
statements,  from  the  nature  of  the  case,  must  be  ambig- 
uous, or  relate  but  obscurely  to  the  corpus  delicti.  "Hasty 
confessions,"  says  Sir  Michael  Foster,  "  made  to  persons 
having  no  authority  to  examine,  are  the  weakest  and 

*  Reg.  V.  Wilson,  Maidstone  Wint.  Ass.  1814.  The  same  doctrine  was  held  by 
L.  C.  J.  Wilde,  in  a  case  of  arson  at  Maidstone  Spring  Assizes,  1847,  where  the 
prisoner  to  conceal  his  disgrace  refused  to  give  his  name. 


INDIRECT   CONFESSIONAL   EVIDENCE.  77 

most  suspicious  of  all  evidence.  Proof  may  be  too- easily 
pi'ocured,  words  are  often  misreported,  whether  through 
ignorance,  inattention,  or  malice,  it  mattereth  not  to  the 
defendant,  he  is  equally  affected  in  either  case ;  and  they 
are  extremely  liable  to  misconstruction,  and  withal  this 
evidence  is  not  in  the  ordinary  course  of  things  to  be 
disproved  by  that  sort  of  negative  evidence  by  which 
the  proof  of  plain  facts  may  be  and  often  is  confronted."" 
•'  How  easy  is  it,"  it  has  been  admirably  said,  "  for  the 
hearer  to  take  a  word  in  a  sense  not  intended  by  the 
speaker,  and  for  want  of  an  exact  representation  of  the 
tone  of  voice,  emphasis,  countenance,  eye,  manner,  and 
action  of  the  one  who  made  the  confession,  how  almost 
impossible  it  is  to  make  third  persons  understand  the 
exact  state  of  his  mind  and  meaning !  For  these  reasons 
such  evidence  is  received  with  great  distrust  and  under 
apprehension  for  the  wrong  it  may  do."  ^ 

Upon  the  trial  of  a  man  for  the  murder  of  a  woman, 
who  had  been  brutally  assaulted  by  three  men  and 
died  from  the  injuries  she  received,  it  appeared  that  one 
of  the  offenders,  at  the  time  of  the  commission  of  the 
outrage,  called  another  of  them  by  the  prisoner's  name, 
from  which  circumstances  suspicion  attached  to  him.  A 
person  deposed  that  he  met  the  prisoner  at  a  public-house, 
and  asked  him  if  he  knew  the  woman  who  had  been  so 
cruelly  treated,  and  that  he  answered,  "  Yes,  what  of 
that  ?  "  The  witness  said  that  he  then  asked  him  if  he 
was  not  one  of  the  parties  concerned  in  that  affair ;  to 
which  he  answered,  according  to  one  account,  "  Yes,  I 
was ;  and  what  then  ? "  or,  as  another  account  states, 
"  If  I  was,  what  then  ? "     It  appeared  that  the  prisoner 

»  Poster's  C.  L.  243;  and  see  1  Greenleaf  s  L.  of  Ev.  s.  214. 

"  In  Resp.  V.  Fields,  Peck's  Rep.  140,  quoted  in  1  Taylor's  L.  of  Ev.  6S9,  2d  ed. 


78  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

was  intoxicated,  and  that  tlie  questions  were  put  with 
a  view  of  ensnaring  him ;  but  influenced  by  this  impru- 
dent language,  the  jury  convicted  him,  and  he  was  exe- 
cuted. The  real  offenders  were  discovered  about  two 
years  afterwards,  and  two  of  them  were  executed  for  this 
very  offence,  and  fully  admitted  their  guilt ;  the  third 
having  been  admitted  to  give  evidence  for  the  Crown." 

But  in  the  most  debased  persons  there  is  an  involun- 
tary tendency  to  truth  and  consistency,  except  when  the 
mind  is  on  its  guard,  and  studiously  bent  upon  conceal- 
ment ;  and  this  law  of  our  nature  sometimes  gives  rise 
to  minute  and  unpremeditated  acts  of  great  weight.  In 
the  memorable  case  of  Eugene  Aram,  who  was  tried  in 
1759  for  the  murder  of  Daniel  Clark,  an  apparently  slight 
circumstance  in  the  conduct  of  his  accomplice  led  to  his 
conviction  and  execution.  About  thirteen  years  after 
the  time  of  Clark's  being  missing,  a  laborer  employed  in 
digging  for  stone  to  supply  a  limekiln  near  Knares- 
borough  discovered  a  human  skeleton  near  the  edge  of 
the  cliff.  It  soon  became  suspected  that  the  body  was 
that  of  Clark,  and  the  coroner  held  an  inquest.  Aram 
and  Houseman  were  the  persons  who  had  last  been  seen 
with  Clark,  on  the  night  before  he  was  missing.  The 
latter  was  summoned  to  attend  the  inquest,  and  discov- 
ered signs  of  uneasiness  :  at  the  request  of  the  coroner 
he  took  up  o^e  of  the  bones,  and  in  his  confusion  dropped 
this  unguarded  expression  :  "  This  is  no  more  Daniel 
Clark's  bone  than  it  is  minej"  from  w4iich  it  was  con- 
cluded, that  if  he  was  so  certain  that  the  bones  before 
him  were  not  those  of  Clark,  he  could  give  some  account 
of  him.    He  was  pressed  with  this  observation,  and  after 

a  Rex  V.  Coleman,  Kingston  Spring  Ass.  1748-9,  and  1  Remarkable  Trials,  lOL'. 
172,-  Rex  V.  Jones  and  Welch,  4  Celebrated  Trials,  344. 


INDIRECT   CONFESSIONAL   EVIDENCE,  79 

various  evasive  accounts,  he  made  a  full  confession  of 
the  crime ;  and  upon  search,  pursuant  to  his  statement, 
the  skeleton  of  Clark  was  found  in  St.  Robert's  C-.w*-. 
buried  precisely  as  he  had  described  it." 

A  remarkable  fact  of  the  same  kind  occurred  in  tht- 
case  of  one  of  three  men  convicted,  in  February,  1807. 
of  a  murder  on  Ilounslow  heath.  In  consequence  of  dis- 
closures made  by  an  accomplice,  a  police  officer  appre- 
hended the  prisoner  four  years  after  the  murder  on  board 
the  "  Shannon  "  frigate,  in  which  he  was  serving  as  a 
marine.  The  officer  asked  him  in  the  presence  of  his 
captain  where  he  had  been  about  three  years  before ;  to 
which  he  answered  that  he  was  employed  in  London  as  a 
day-laborer.  He  then  asked  him  where  he  had  been  em- 
ployed that  time  four  years;  the  man  immediately  turned 
pale,  and  would  have  fainted  away  had  not  water  been  ad- 
ministered to  him.  These  marks  of  emotion  derived  their 
weight  from  the  latency  of  the  allusion,  no  express  refer- 
ence having  been  made  to  the  offence  with  which  the  pris- 
oner was  charged,  and  from  the  probability  that  there  must 
have  been  some  secret  reason  for  his  emotion  connected 
with  the  event  so  obscurely  referred  to,  particularly  as 
he  had  evinced  no  such  feeling  upon  the  first  question, 
which  referred  to  a  later  period.^ 

To  this  head  may  be  referred  the  acts  of  concealment, 
disguise,  flight,  and  other  indications  of  mental  emotion 
usually  found  in  connection  with  guilt."  By  the  com- 
mon law,  flight  was  considered  so  strong  a  presumption 
of  guilt,  that  in  cases  of  treason  and  felony  it  carried  the 
forfeiture  of  the  party's  goods,  whether  he  were  found 

"  Life  and  Trial  of  Eugene  Aram;  and  see  Biog.  Brit,  article  Eugene  Aram. 
•>  Rex  V.  Haggertj'  and  others,  (i  Celebrated  Trials,  19:  and  Sessions  Papers,  1807. 
'^  See  Re.x  v.  Crossfield,  26  St.  Tr.  216,  et  seq.;  and  Re.x  r.  O'Coigley,  27  H:  138. 


80  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

guilty  or  acquitted ;  *  and  the  officer  always,  until  the  abo- 
lition of  the  practice  by  statute/'  called  upon  the  jury, 
after  verdict  of  acquittal,  to  state  whether  the  party  had 
fled  on  account  of  the  charge.  These  several  acts  in  all 
their  modifications  are  indications  of  fear ;  but  it  would 
be  harsh  and  unreasonable  invariably  to  interpret  them 
as  indications  of  guilty  consciousness,  and  greater  weight 
has  sometimes  been  attached  to  them  than  they  have 
fairly  warranted.  Doubtless  the  manly  carriage  of  integ- 
rity always  commands  the  respect  of  mankind,  and  all 
tribunals  do  homage  to  the  great  principles  from  which 
consistency  springs  ;  but  it  does  not  follow,  because  the 
moral  courage  and  consistency  which  generally  accom- 
pany the  consciousness  of  uprightness  raise  a  presump- 
tion of  innocence,  that  tlie  converse  is  always  true.  Men 
are  differently  constituted  as  respects  both  animal  and 
moral  courage,  and  fear  may  spring  from  causes  very 
different  from  that  of  conscious  guilt ;  and  every  man  is 
therefore  entitled  to  a  candid  construction  of  his  words 
and  actions,  particularly  if  placed  in  circumstances  of 
great  and  unexpected  difficulty."  Mr.  Justice  Abbott,  on 
a  trial  for  murder  where  evidence  was  given  of  flight, 
observed  in  his  charge  to  the  jury  that  "  a  person,  how- 
ever conscious  of  innocence,  might  not  have  courage  to 
stand  a  trial;  but  might,  although  innocent,  think  it  neces- 
sary to  consult  his  safety  by  flight."  "  It  may  be,"  added 
the  learned  judge,  "  a  conscious  anticipation  of  punish- 
ment for  guilt,  as  the  guilty  will  alwayis  anticipate  the 
consequences  ;  but  at  the  same  time  it  may  possibly  be, 
according  to  the  frame  of  mind,  merely  an  inclination 
to  consult  his  safety  by  flight  rather  than  stand  his  trial 

'  Co.  Litt.  375.  b  7  and  S  Geo.  IV,  cap.  23,  s.  5. 

"  Per  Mr.  Daron  Gurney,  in  Reg.  v.  Belancy,  infra. 


INDIRECT   CONFESSIONAL  EVIDENCE.  81 

on  a  charge  so  heinous  and  scandalous  as  this  is."*  The 
learned  judge,  in  Professor  Webster's  case,  said,  "  Such 
are  the  various  temperaments  of  men,  and  so  rare  the 
occurrence  of  the  sudden  arrest  of  a  person  upon  the 
charge  of  a  crime  so  heinous,  that  who  of  us  can  say 
how  an  innocent  or  a  guilty  man  ought  or  would  be 
likely  to  act  in  such  a  case  ?  or  that  he  was  too  much  or 
too  little  moved  for  an  innocent  man  ?  Have  you  any 
experience  that  an  innocent  man,  stunned  under  the  mere 
imputation  of  such  a  charge,  will  always  appear  calm  and 
collected  ?  or  that  a  guilty  man,  who  by  knowledge  of 
his  danger  might  be  somewhat  braced  up  for  the  conse- 
quences, would  always  appear  agitated  or  the  reverse  ?"  '' 
It  is  not  possible  to  lay  down  any  express  test  by 
which  these  various  indications  may  be  infallibly  referred 
to  any  more  specific  origin  than  the  operation  of  fear. 
Whether  that  fear  proceeds  from  the  consciousness  of 
guilt,  or  from  the  apprehension  of  undeserved  disgrace 
and  punishment,  and  from  deficiency  of  moral  courage, 
is  a  question  which  can  be  judged  of  only  by  reference 
to  concomitant  circumstances.  Prejudice  is  often  epi- 
demic, and  there  have  been  periods  and  occasions  when 
public  indignation  has  been  so  much  and  so  unjustly 
aroused,  as  reasonably  to  deter  the  boldest  mind  from 
voluntary  submission  to  the  ordeal  of  a  trial.  The  con- 
sciousness that  appearances  have  been  suspicious,  even 
where  suspicion  has  been  unwarrantable,  has  sometimes 
led  to  acts  of  conduct  apparently  incompatible  with  inno- 
cence, and  drawn  down  the  unmerited  infliction  of  the 
highest  legal  penalty.  The  inconclusiveness  of  these 
circumstances  is  strikingly  exemplified  by  a  case  men- 
tioned in  a  preceding  page,  where  the  magistrate  was  so- 

«  Rex  v.  Donnall,  infra.  *>  Bemis's  Rep.  486. 

6 


82  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

fully  convinced  of  the  prisoner's  innocence  that  he  al- 
lowed him  to  go  at  large  on  bail  to  appear  at  the  assizes. 
The  coroner's  inquest  having  brought  in  a  verdict  of 
"guilty"  against  him,  he  endeavored  to  escape  from  the 
danger  of  a  trial  in  the  excited  state  of  public  feeling 
by  flight ;  but  was  subsequently  apprehended,  convicted, 
and  executed  on  a  charge  of  murder,  of  which  he  was 
unquestionably  guiltless.* 

In  the  endeavor  to  discover  truth,  no  evidence  should 
be  excluded ;  but  a  case  must  be  scanty  of  evidence 
which  demands  that  importance  should  be  attached  to 
circumstances  so  fallacious  as  the  acts  in  question.  It 
has  been  observed,  that  if  the  evidence  without  them  is 
sufficient,  this  species  of  evidence  is  unnecessary,  and 
that  if  not,  then  the  inference  from  language,  conduct, 
and  behavior,  seems  not  of  sufficient  weight  to  give  any 
conclusive  effect  to  the  other  proofs.'' 

Section  7. 

the  suppression,  destruction,  fabrication,  and  simula- 
tion of  evidence. 

It  is  a  m-axim  of  law,  that  omnia  prwsumuntur  contra 
spoliatorem,  and  the  suppression  or  destruction  of  per- 
tinent evidence  is  always  therefore  deemed  a  prejudicial 
circumstance  of  great  weight;  for  as  no  action  of  a  ra- 
tional being  is  performed  without  a  motive,  it  naturally 
leads  to  the  inference  that  such  evidence,  if  it  were  pro- 
duced, would  operate  unfavorably  to  the  party  in  whose 

»  Rex  r.  Coleman,  ante,  78;  and  see  the  case  of  Green  and  others,  14  St.  Tr.  1369, 
where  several  persons,  one  of  whom  had  voluntarily  surrendered,  were  convicted 
in  Scotland  and  executed,  at  a  period  of  great  excitement  against  Englishmen,  upon 
a  groundless  charge  of  piracy  and  murder. 

»  Per  Shaw,  C.  J.,  in  Prof.  AVebster's  case,  Rep.  %tt  supra,  487. 


SUPPRESSION    OF    EVIDENCE.  S3 

power  it  is  to  produce  it,  and  who  withholds  it,  or  has  will- 
fully deprived  himself  of  the  power  of  producing  it." 

A  chimney-sweeper  having  found  a  jewel,  took  it  to  a 
jeweller  to  ascertain  its  value,  who,  having  removed  it 
from  the  socket,  gave  him  three-halfpence,  and  refused 
to  return  it.  The  friends  of  the  finder  encouraged  him 
to  bring  an  action  against  the  jeweller ;  and  the  Lord 
Chief  Justice  Pratt  directed  the  jury,  that  unless  the 
defendant  produced  the  jewel,  and  showed  it  not  to  be 
of  the  finest  water,  they  should  presume  the  strongest 
against  him,  and  make  the  value  of  the  best  jewels  the 
measure  of  their  damages.**  In  an  action  of  trover  for  a 
diamond  necklace  which  had  been  unlawfully  taken  out 
of  the  owner's  possession,  and  some  of  the  diamonds 
were  seen  shortly  afterwards  in  the  defendant's  posses- 
sion, and  he  could  give  no  satisfactory  account  how  he 
came  by  them,  the  jury  were  directed  to  presume  that 
the  whole  set  of  diamonds  had  come  to  the  defendant's 
hands,  and  that  the  full  value  of  the  whole  was  the  proper 
measure  of  damages.*"  On  an  ejectment  involving  the 
title  to  large  estates  in  Ireland,  the  question  being 
whether  the  plaintiff  was  the  legitimate  son  of  Lord 
Altham,  and  therefore  prior  in  right  to  the  defendant, 
who  was  his  brother,  it  was  proved  that  the  defendant 
had  procured  the  plaintiff,  when  a  boy,  to  be  kidnapped 
and  sent  to  America,  and  on  his  return,  fifteen  years 
afterwards,  on  occasion  of  an  accidental  homicide,  had 
assisted  in  an  unjust  prosecution  against  him  for  murder  : 
it  was  held  that  these  circumstances  raised  a  violent 
presumption  of  the  defendant's  knowledge  of  title  in  the 

a  1  Starkie's  L.  of  Ev.  437. 

^  Armorie  r.  Delauiirie,  1  Strange,  505 ;  and  see  Rex  v.  Lord  Melville,  29  St. 
Tr.  1457. 

0  Mortimer  c.  Craddock,  12  L.  J.  N.  S.  166. 


84  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

plaintiff;  and  the  jury  were  directed  that  the  suppressor 
and  the  destroyer  were  to  be  considered  in  the  same 
light  as  the  law  considers  a  spoliator,  as  having  de- 
stroyed the  proper  evidence  ;  that  against  him  defective 
proof,  so  far  as  he  had  occasioned  such  defect,  must  be 
received,  and  everything  presumed  to  make  it  effectual ; 
and  that  if  they  thought  the  plaintiff  had  given  probable 
evidence  of  his  being  the  legitimate  son  of  Lord  Altham, 
the  proof  might  be  turned  on  the  defendant,  and  that 
they  might  expect  satisfaction  from  him  that  his  brother 
died  without  issue.*"  On  a  bill  filed  against  a  defendant 
who  had  destroyed  a  deed  by  which  the  plaintiff  claimed 
under  certain  limitations  a  real  estate,  secondary  evi- 
dence was  given  of  the  limitations  of  the  deed ;  but  the 
evidence,  as  the  witnesses  gave  it,  was  of  limitations 
which  could  not  legally  take  effect,  being  of  a  term  of 
years  after  an  indefinite  failure  of  issue :  Sir  Joseph 
Jekyll,  the  Master  of  the  Rolls,  said  that  as  against  the 
man  who  had  destroyed  the  instrument  which  would 
have  shown  what  the  rights  of  the  plaintiff  were,  he 
would  presume  even  what  the  plaintiff  had  not  proved, 
that  the  limitntion  was  to  take  place  after  the  failure  of 
issue  in  the  life-time  of  a  person  then  in  being.'' 

The  foregoing  illustrations  of  the  rule  of  evidence 
under  consideration  are  among  the  most  remarkable 
recorded  cases  of  its  application ;  nor  are  they  the  less 
pertinent  because  they  arose  in  civil  cases,  since  the  rules 
of  evidence  are  the  same  in  all  cases,  whether  civil  or 


=»  Craig  on  dem.  of  Annesley  v.  Earl  of  Anglesea,  17  St.  Tr.  1416 ;  and  see  the 
Tracy  Peerage,  11  C.  &  F.  154:  Clunnes  v.  Pezzey,  1  Canipb.  Kei).  8;  Lawton  v. 
Sweeny,  8  Jurist,  964;  1  Greenleaf's  L.  of  Ev.  s.  37;  and  see  the  observations  of 
Campbell,  L.  C.  J.,  in  Reg.  v.  The  Midland  Railway  Company,  20  L.  Mag.  M. 
C.  145. 

b  Dalston  v.  Cotsworth,  1  P.  Wms.  731. 


SUPPRESSION    OF    EVIDENCE.  85 

criminal ;  and  no  inconsiderable  proportion  of  the  crimi- 
nal trials  which  occur  present  examples  of  its  practical 
bearing  and  effect." 

Amongst  the  most  forcible  of  presumptive  indications 
may  be  mentioned,  all  attempts  to  pollute  or  disturb 
the  current  of  truth  and  justice,  or  to  prevent  a  fair 
and  impartial  trial,  by  endeavors  to  intimidate,  suborn, 
bribe,  or  otherwise  tamper  with  the  prosecutor,  or  the 
witnesses,  or  the  officers  or  ministers  of  justice,  the  con- 
cealment, suppression,  destruction,  or  alteration  of  any 
article  of  real  evidence ;  any  of  which  acts  clearly  brought 
home  to  the  prisoner,  or  his  agents,  are  of  a  most  preju- 
dicial effect,  as  denoting  on  his  part  a  consciousness  of 
guilt,  and  a  desire  to  evade  the  pressure  of  facts  tending 
to  establish  it.*"  Perhaps  in  no  case  have  circumstances 
of  this  kind  held  with  such  fatal  effect  as  in  that  of 
Donellan,  who  was  convicted  of  the  murder  of  Sir  The- 
odosius  Boughton  by  poison.  The  prisoner,  after  having 
administered  the  fatal  draught  in  the  form  of  medicine, 
rinsed  out  the  phial  which  had  contained  it,  and  when 
that  fact  was  stated  before  the  coroner,  he  was  observed 
to  check  the  witness  by  pulling  her  sleeve.  In  his  charge 
to  the  jury,  Mr.  Justice  BuUer  laid  great  stress  upon  that 
circumstance.  "Was  there  anything  so  likely,"  said  the 
learned  judge,  "  to  lead  to  a  discovery  as  the  remains, 
however  small  they  might  have  been,  of  medicine  in  the 
bottle  ?  But  that  is  destroyed  by  the  prisoner.  In  the 
moment  he  is  doing  it,  he  is  found  fault  with.  What  does 
he  do  next  ?  He  takes  the  second  bottle,  puts  water  into 
that,  and  rinses  it  also.    He  is  checked  by  Lady  Bough- 

a  Rex  V.  De  la  Motte,  21  St.  Tr.  810;  Rex  v.  Burdett,  ut  supra. 
b  Rex  V.  Crossfield,  26  St.  Tr.  217;  Rex  v.  Donellan,  Rex  v.  Donnall,  Reg.  v. 
Palmer,  infra. 


86  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

ton,  and  asked  what  he  meant  by  it — why  he  meddled 
with  the  bottles.  His  answer  is,  he  did  it  to  taste  it ;  but 
did  he  taste  the  first  bottle  ?  Lady  Boughton  swears  he 
did  not.  The  next  thing  he  does,  is  to  get  all  the  things 
sent  out  of  the  room ;  for  when  the  servant  comes  up,  he 
orders  her  to  take  away  the  bottles,  the  basin,  and  the 
dirty  things.  He  puts  the  bottles  into  her  hand,  and  she 
was  going  to  carry  them  away,  but  Lady  Boughton 
stopped  her.  Why  were  all  these  things  to  be  removed  ? 
Why  was  it  necessary  for  the  prisoner,  who  was  fully  ad- 
vertised of  the  consequence  by  Lady  Boughton,  to  insist 
upon  having  everything  removed  ?  Why  should  he  be  so 
solicitous  to  remove  everything  that  might  lead  to  a  dis- 
covery ?  *  As  to  the  conduct  of  the  prisoner  before  the 
coroner.  Lady  Boughton  had  mentioned  the  circumstance 
of  the  prisoner's  rinsing  out  the  bottle,  one  of  the  cor- 
oner's jury  swears  that  he  saw  him  pull  her  by  the  sleeve. 
Why  did  he  do  that  ?  If  he  was  innocent,  would  it  not 
be  his  wish  and  anxious  desire,  as  he  expresses  in  his 
letter,  that  all  possible  inquiry  should  be  made  ?  What 
j)asses  afterwards  ?  When  they  get  home,  the  prisoner 
tells  his  wife  that  Lady  Boughton  had  given  this  evi- 
dence unnecessarily;  that  she  was  not  obliged  to  say 
anything  but  in  answer  to  questions  that  were  put  to  her, 
and  that  the  question  about  rinsing  out  the  bottles  was 
not  asked  her.  Did  the  prisoner  mean  that  she  should 
suppress  the  truth  ?  that  she  should  endeavor  to  avoid  a 
discovery  as  much  as  she  could  by  barely  saying  Yes  or 
No  to  the  questions  that  were  asked  her,  and  not  disclose 
the  whole  truth  ?  If  he  was  innocent,  how  could  the  truth 
affect  him  ?  but  at  that  time  the  circumstance  of  rinsing 
out  the  bottles  appeared  even  to  him  to  be  so  decisive 

»  Gurney's  Report,  ut  supra. 


SUPPRESSION    OF    EVIDENCE.  87 

that  he  stopped  her  on  the  instant,  and  bhimed  her  after- 
wards for  having  mentioned  it.  All  these,"  said  the 
learned  judge,  "are  very  strong  facts  to  show  what  was 
passing  in  the  prisoner's  own  mind."  A  boatman  was 
convicted  of  stealing  rum  which  had  been  delivered  to  his 
master,  a  carrier  by  canal,  for  conveyance  from  Liverpool 
to  Birmingham.  The  carrier's  agent  at  Liverpool  had 
taken  a  sample  of  the  spirit  and  tested  its  strength ;  and 
upon  delivery  at  its  place  of  destination,  the  spirit  was 
found  to  be  under  proof,  and  the  portion  abstracted  had 
been  replaced  with  water.  The  carrier's  clerk,  on  the 
complaint  of  the  consignee,  went  to  the  boat  where  the 
prisoner  was,  to  require  explanation ;  but  as  soon  as  he 
had  stepped  into  it,  the  prisoner  pushed  him  back  upon 
the  wharf  and  forced  the  boat  into  the  middle  of  the  canal, 
where  he  broke  three  jars,  and  emptied  their  contents, 
which  by  the  smell  were  proved  to  be  rum,  into  the  canal.'' 
Other  facts  of  the  same  kind  are  the  common  cases  of 
the  obliteration,  effacing,  or  otherwise  removing  marks 
of  ownership  or  identity  from  plate,  linen,  or  other  arti- 
cles of  property,  or  of  stains  of  blood  or  other  matter 
from  the  person  or  dress  of  the  accused,  or  the  suggestion 
or  insinuation  of  false,  groundless,  or  deceptive  hypoth- 
eses or  explanations,  in  order  to  neutralize  or  account 
for  adverse  facts  or  appearances.  It  is  on  the  principle 
of  these  cases  that,  by  statute,  if  any  person  on  board  a 
vessel  which  is  chased  by  an  officer  of  the  preventive 
service  shall  throw  overboard,  stave,  or  destroy  any 
part  of  the  freight,  the  vessel  is  declared  to  be  forfeited  ; 
and  that  goods  liable  to  duty  concealed  on  board  any 
vessel  are  also  declared  to  be  forfeited ;  ^  and  that  other 

*  Rex  i).  Thomas,  Warwick  Spring  Ass.  1846,  coram  Mr.  Justice  Bosanquot. 
»  8  &  9  Vict.  c.  87,  ss.  5,  6,  29. 


88  \Y1LLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

similar  statutable  presumptions  have  been  created ;  and 
that  whenever  absent  witnesses  are  so  mixed  up  with 
transactions  before  the  court  as  to  give  rise  to  comments 
on  their  not  being  present,  it  is  the  common  practice  to 
prove  the  cause  of  their  non-attendance,  as,  for  instance, 
death,  illness,  or  having  quitted  the  country."^ 

Another  fact  of  this  kind  is  the  attempt  to  prevent 
post  mortem  examination  by  the  premature  interment 
of  human  remains,  under  the  pretext  that  it  is  ren- 
dered necessary  by  the  state  of  the  bod5^,  since  it  cannot 
but  be  known  that  such  examination  will  always  furnish 
important,  and  generally  conclusive,  evidentiary  matter 
as  to  the  cause  of  death.**  So  also  is  the  concealment 
of  death  by  the  destruction  or  attempted  destruction  of 
human  remains ; "  but  in  this  case  the  presumption  of 
criminality  results  from  the  act  of  concealment  rather 
than  from  the  nature  of  the  means  employed,  however 
revolting,  which  must  be  regarded  only  as  incidental 
to  the  fact  of  concealment,  and  not  as  aggravating  the 
character  and  tendency  of  the  act  itself.  Where  a  pris- 
oner tried  for  murder  admitted  that  he  had  cut  off  the 
head  and  legs  from  the  trunk  of  a  female,  and  con- 
cealed the  remains  in  several  places,  but  alleged  that 
her  death  had  taken  place  by  accident  while  she  was  in 
his  company,  and  that  in  the  alarm  of  the  moment,  and 
to  prevent  suspicion,  he  had  determined  to  conceal  the 
death.  Lord  Chief  Justice  Tindal  told  the  jury  that  the 
concealment  of  death  under  such  circumstances  had  al- 
ways been  considered  to  be  a  point  of  the  greatest  sus- 
picion, but  that  this  evidence  must  be  received  with  a 

a  Per  Pollock,  L.  C.  B.,  in  Cowper  v.  French,  Exch.  N.  P.  July  10,  1850. 
•>  Rex  V.  Donellan,  Rex  v.  Donnall,  Rex  o.  Palmer,  infra. 

<=  Rex  V.  Gardelle,  4  Celebrated  Trials,  400;  Rex  v.  Cook,  infra;  Reg.  >:.  Good, 
Sess.  Pap.  May,  1842. 


SUPPRESSION   OF    EVIDENCE.  89 

certain  degree  of  modification,  and  especially  in  a  case 
where  the  feelings  might  be  excited  by  the  singular 
means  of  concealment  adopted  by  the  prisoner ;  that  this 
point  of  evidence  was  therefore  for  the  consideration  of 
the  jury,  and  that  it  was  for  them  to  judge  how  far  it 
was  a  proof  of  the  prisoner's  guilt ;  but  the  mere  general 
fact  of  the  concealment,  added  the  learned  judge,  is  to 
be  considered,  and  not  the  circumstances  under  which 
it  took  place." 

Other  such  facts  are  the  officious  affectation  of  grief 
and  concern  as  an  artifice  to  prevent  or  avert  suspicion,'' 
false  representations  as  to  the  state  of  a  party's  health, 
or  the  utterance  of  obscure  or  mysterious  predictions  or 
allusions,  the  pretence  of  supernatural  dreams,  noises, 
or  other  omens  or  intimations,  calculated  to  prepare  the 
connections  for  the  event  of  sudden  death,  and  to  dimin- 
ish the  surprise  and  alarm  which  naturally  follow  such 
an  event.  A  woman  who  was  convicted  of  murder  about 
a  month  before  the  catastrophe  told  the  mother  of  an 
infant  child  whom  she  poisoned,  as  well  as  her  own  hus- 
band and  child,  that  she  had  had  her  fortune  told,  and 
that  within  six  weeks  three  funerals  would  go  from  her 
door,  those  of  her  husband  and  son  and  the  child"  of  the 
person  she  was  addressing.*^ 

The  fabrication  of  simulated  facts  and  appearances 
calculated  to  create  alarm,  or  otherwise  to  give  a  delusive 
tendency  and  interpretation  to  inculpator}^  facts,  is  an 
artifice  frequently  resorted  to  for  the  avoidance,  neutral- 
ization, or  explanation,  of  circumstances  naturally  pre- 

^  Kex  V.  Greenacre,  C.  C.  Court,  April,  1S37,  infra;  and  sec  Prof.  Webster's  case, 
Bemis's  Report,  ut  supra. 

•>  Rex  V.  Blandy,  ut  supra  ;  Rex  i'.  Patch,  infra. 

=  Rex  V.  Holroj'd,  4  Cel.  Tr.  167 ;  and  see  Rex  v.  Donellan  and  Rex  c.  I><mnall, 
infra. 


90  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

sumptive  of  guilt ;  the  resort  to  which  is  of  the  most  prej- 
udicial criminative  tendency,  inasmuch  as  it  necessarily 
implies  an  admission  of  their  truth,  and  a  consciousness 
of  the  inculpatory  effect,  if  uncontradicted  or  unexplained, 
of  the  facts  which  it  thus  seeks  to  divest  of  their  natu- 
ral significancy.  As  instances  of  such  simulated  facts 
may  be  mentioned  the  pretence  of  having  partaken  of  a 
poisonous  draught  which  has  caused  death  f  the  self- 
infliction  of  slight  wounds  to  raise  the  inference  that  the 
offender  had  himself  been  the  object  of  deadly  attack ;'' 
the  attempt  to  fix  guilt  or  suspicion  upon  others  by  the 
groundless  suggestion  of  malicious  feelings  ;''  the  placing 
of  a  razor,  pistol,  or  other  weapon  in  the  hand  of  or  near 
to  a  dead  body  to  lead  to  the  notion  of  suicide,  and  many 
other  such  acts.  But  cunning  is  "  a  sinister  or  crooked 
wisdom,"  and  not  unfrequently  the  very  means  employed 
to  prevent  suspicion  lead  to  the  discovery  of  the  real 
truth.  A  murderer,  to  simulate  the  appearance  of  suicide, 
placed  a  razor  in  the  left  hand  of  a  right-handed  woman.'^ 
A  man  was  found  shot,  and  his  own  pistol  lying  near 
him  ;  but,  although  no  person  had  been  seen  to  leave  the 
house,  the  suspicion  of  suicide  was  negatived  by  the  fact 
that  the  ball  was  too  large  to  have  entered  the  pistol.^ 

A  very  remarkable  case  of  this  kind  is  recorded  in  the 
State  Trials,  which  was  tried  at  Hertford  Assizes,  4  Car. 
I.,  before  Mr.  Justice  Harvey.  A  woman  was  found  dead 
in  her  bed  with  her  throat  cut,  and  a  knife  sticking  in 
the  floor.     Several  persons  of  the  family  who  slept  in  the 

*  Rex  V.  Nairn  and  Ogilby,  19  St.  Tr.  1284;  Rex  v.  Wescombe,  Exeter  Summ. 
Ass.  1839. 

*•  Reg.  V.  Bolam,  Durham  Summer  Ass.  1839. 
"  Rex  V.  Patch,  vf  sujwa. 

*  Rex  V.  Fitter,  Warwick  Summer  Ass.  1834,  coram  Mr.  Justice  Taunton. 
"  3  P.  &  F.  Med.  J.  34. 


SUPPRESSION    OF    EVIDENCE.  91 

adjoining  room  deposed  that  the  deceased  went  to  bed 
with  her  child,  her  husband  being  absent,  that  the  pris- 
oners slept  in  the  adjoining  room,  and  that  no  person 
afterwards  came  into  the  house.  The  coroner's  jury  were 
inclined  to  return  a  verdict  o{  felo  dc  se,  but  suspicion 
being  excited  against  these  individuals,  the  jury,  whose 
verdict  was  not  yet  drawn  up  in  form,  desired  that  the 
remains  of  the  deceased  might  be  taken  up,  and  accord- 
ingly,' thirty  days  after  her  death  they  were  taken  up, 
and  the  jury  charged  the  prisoners  with  the  murder. 
Upon  their  trial  they  were  acquitted,  but  so  much  against 
the  evidence,  that  the  judge  let  fall  .his  opinion  that  it 
were  better  an  appeal  were  brought  than  so  foul  a  mur- 
der should  escape  unpunished.  Accordingly  an  appeal 
was  brought  by  the  child  against  his  father,  grandmother, 
and  aunt,  and  her  husband.  On  the  trial  of  the  appeal 
before  Chief  Justice  Hyde,  the  evidence  adduced  was, 
that  the  deceased  lay  in  a  composed  manner  in  her  bed, 
with  the  bedclothes  undisturbed,  that  her  child  lay  by 
her  side,  that  her  neck  was  broken,  and  that  her  throat 
was  cut  from  ear  to  ear.  There  was  no  blood  in  the 
bed,  except  a  tincture  on  the  bolster  where  her  head 
lay.  From  the  bed's  head  there  was  a  stream  of  blood  on 
the  floor,  which  ran  along  till  it  pounded  in  the  bendings 
of  the  floor,  and  there  was  also  another  stream  of  blood 
on  the  floor  at  the  bed's  foot,  which  pounded  also  on  the 
floor  to  a  very  great  quantity ;  but  there  was  no  commu- 
nication of  blood  between  these  two  places,  nor  upon  the 
bed.  A  bloody  knife  was  found  in  the  morning  stick- 
ing in  the  floor,  at  some  distance  from  the  bed ;  but  the 
point  of  the  knife,  as  it  stuck,  was  towards  the  bed,  and 
the  handle  from  the  bed  ;  and  there  was  the  print  of  the 
thumb  and  fingers  of  a  left  hand.     It  was  beyond  all 


92  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

question,  from  the  circumstances,  that  the  deceased  had 
been  murdered,  for  if  she  had  committed  suicide  by  cut- 
ting her  own  throat,  she  coukl  not  by  any  possibility 
have  broken  her  own  neck  in  bed.  The  father,  grand- 
father, and  aunt  were  convicted  and  executed.'' 

Two  persons  were  convicted  of  murder ;  and  it  ap- 
peared that  the  deceased  was  murdered  in  the  night,  and 
that  the  prisoners,  one  of  w^hom  was  his  niece,  and  the 
other  his  servant  man,  had  given  an  alarm  from  within 
the  house ;  whereas  the  undisturbed  state  of  the  dew  on 
the  grass  on  the  outside  rendered  it  certain  that  the 
parties  implicated  were  domestics.^ 

An  unsuccessful  attempt  to  establish  an  alibi  is  always 
a  circumstance  of  the  greatest  weight  against  the  pris- 
oner, because  the  resort  to  that  kind  of  defence  implies 
an  admission  of  the  truth  and  relevancy  of  the  facts 
alleged,  and  the  correctness  of  the  inference  drawn  from 
them  if  they  remain  uncontradicted.  This  defence  is 
frequently  fabricated,  and  is  liable  to  many  sources  of 
fallacy,  which  will  be  more  appropriately  considered  in 
a  subsequent  part  of  this  essay ;  and  a  learned  judge 
has  said,  that  if  the  defence  turns  out  to  be  untrue,  it 
amounts  to  a  conviction.''  But  it  must  not  be  overlooked 
that,  such  is  the  weakness  of  human  nature,  that  there 
have  been  cases  where  innocence,  under  the  alarm  of 
menacing  appearances,  has  fatally  committed  itself,  by 
the  simulation  of  facts  for  the  purpose  of  evading  the 
force  of  circumstances  of  apparent  suspicion.  When 
the  defence  of  an  alibi  fails,  it  is  generally  on  the  ground 

a  Rex  V.  Okeman  and  others;  comp.  10  Harg.  St.  Tr.  app.  2,  29,  and  14  St.  Tr. 
1324. 

''  Rex  V.  Jeffreys  and  Swan,  18  St.  Tr.  1194;  Maseardus,  ut  stipr^,  Concl. 
ccLXXiii,  n.  20. 

e  Per  Mr.  Justice  Daly,  in  Rex  v.  Killan,  20  St.  Tr.  1085. 


STATUTORY    PRESUMPTIONS.  93 

that  the  witnesses  are  disbelieved,  and  the  story  consid- 
ered to  be  a  fabrication  ;  and  from  the  facility  with  which 
it  may  be  fabricated,  it  is  commonly  entertained  with 
suspicion,  and  sometimes,  perhaps,  unjustly  so.'' 

Circumstances  such  as  those  which  have  been  enumer- 
ated are  jnstly  considered  to  be  incompatible  with  integ- 
rity and  innocence,  and  referable  to  a  consciousness  of 
guilt  and  to  a  desire  to  evade  the  force  of  facts  indicative 
of  it ;  and  they  consequently  subject  the  party  guilty  of 
them  to  very  unfavorable  and  injurious  inferences. 

Section  8. 

statutory  presumptions. 

Upon  the  principle  of  the  rule  of  presumption  against 
persons  in  whose  possession  the  fruits  of  crime  are  dis- 
covered recently  after  its  commission,  many  acts  have 
been  constituted  legal  presumptions  of  guilt  by  statute, 
so  as  to  throw  the  onus  of  rebutting  or  displacing  such 
presumptions  upon  the  party  accused ;  such,  for  exam- 
ple, among  many  others,  as  the  making  or  possessing,  or 
buying  or  selling,  coining  tools  or  instruments  ;**  the  pos- 
session of  forged  bank  notes,  knowing  the  same  to  be 
forged,  without  lawful  excuse  f  the  possession  of  marine 
stores  marked  with  the  king's  mark,*^  the  acting  or  be- 
having as  the  master  or  mistress  of  a  disorderly  house," 
the  finding  of  instruments  in  any  place  suspected  to  be 
used  as  a  common  gaming-house,*^  and  the  being  found 
by  night  in  possession,  without  lawful  excuse,  of  any 

•'  See  Rex  o.  Robinson,  infra.  ^  St.  2  W.  IV,  c.  30,  s.  10. 

°  St.  11  G.  IV,  and  1  W.  IV,  c.  66,  s.  12-19,  and  28. 

<•  St.  9  &  10  W.  Ill,  c.  41 ;  and  39  &,  40  G.  Ill,  c.  89. 

e  St.  21  G.  Ill,  c.  49.  f  St.  8  &  9  Vic.  c.  109. 


94  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

picklocI<,  key,,  crow,  jack,  bit,  or  other  instrument  of 
housebreaking."'  The  revenue  laws  abound  with  similar 
instances  of  presumptions  created  for  the  purpose  of 
protecting  the  public  against  infractions  of  those  laws. 

By  a  remarkable  anomaly,  probably  grounded  upon 
some  supposed  analogy  to  the  rule  alluded  to,  the  sale  by 
a  shopman  of  a  book  or  newspaper  containing  libellous 
matter  was  formerly  held  to  constitute  a  conclusive  pre- 
sumption of  publication  by  the  authority  of  the  master, 
from  the  consequences  of  which  he  could  not  protect 
himself  by  showing  that  such  sale  was  not  only  unauthor- 
ized, but  even  without  his  knowledge.^  This  carried 
the  doctrine  of  agency  to  an  unwarrantable  extent.  A 
late  statute  has  now  brought  this  part  of  our  law  into 
harmony  with  the  other  parts  of  our  system,  by  provid- 
ing that  whensoever,  upon  any  trial  for  the  publication 
of  a  libel,  evidence  shall  have  been  given  which  shall 
establish  a  presumptive  case  of  publication  against  the 
defendant  by  the  act  of  any  other  person  by  his  authority, 
it  shall  be  competent  to  him  to  prove  that  such  publica- 
tipn  was  made  without  his  authority,  consent,  or  knowl- 
edge, and  that  it  did  not  arise  from  want  of  due  care  on 
his  part.*" 

Of  statutory  presumptions  this  general  notice  is  suffi- 
cient, as  it  is  the  object  of  this  essay  to  consider  the 
natural  connection  between  facts  and  the  presumptions 
to  which  they  naturally  lead,  and  not  to  enumerate  the 
presumptions  created  by  positive  law.*^ 

a  St.  14  &  15  Vict.  c.  19,  s.  1 ;  and  see  Reg.  v.  Oldham,  5  Cox's  C.  C.  551,  and 
3  C.  &  K.  249. 

"  Rex  V.  Almon,  20  St.  Tr.  803 ;  Rex  v.  Cuthell,  27  ib.  641. 

«  St.  6  &  7  Vic.  c.  96,  s.  7. 

^  See  a  copious  collection  of  such  presumjitions  in  1  Taylor's  L.  of  Ev.  65,  96, 
103,  269. 


STATUTORY    PRESUMPTIONS.  9f) 

It  is  evident  that  all  such  arbitrary  presumptions  de- 
pend for  their  reasonable  force  and  authority  upon  the 
obnoxious  character  per  se  of  the  particular  acts  thus 
constituted  legal  presumptions,  upon  their  strict  connec- 
tion and  relation,  as  repugnant  evidence  either  of  some 
specific  legal  offence,  or  of  the  intention  to  commit  such 
offence,  and  upon  the  facility  of  proof  by  the  accused  f)f 
matter  of  legal  excuse  where  such  matter  exists. 

In  the  interpretation  of  laws  which  create  positive  pre- 
sumptions of  guilt,  it  is  essential  to  distinguish  between 
the  letter  and  the  spirit  of  the  enactment ;  to  such  laws 
the  maxim  is  specially  pertinent,  "  scire  leges,  non  est, 
earum  vef^ba  tenere,  sed  vim  ac  potestatem."^  It  is  not 
practicable  to  predicate  all  the  cases  which  may  fall 
within  the  language  of  the  rule,  or  to  anticipate  the  ne- 
cessary exceptions  which  a  proper  regard  to  the  inten- 
tion of  the  legislature  would  exclude  from  its  operation, 
and  which  it  is  reasonable  to  conclude  that  the  legisla- 
ture would  have  expressly  excluded  if  they  had  been 
foreseen.  However  peremptory  and  apparently  conclu- 
sive, therefore,  the  language  of  such  enactments  may  be. 
it  is  not  allowed  to  exclude  or  control  the  just  force  and 
operation  of  such  concomitant  circumstances  as  tend  to 
repel  the  presumption  of  the  malus  animus  arising  from 
the  bare  facts  which  constitute  the  presumption.^'  The 
following  cases  illustrate  the  necessity  of  thus  control- 
ling the  application  of  positive  presumptions  by  such 
qualifying  considerations  as  must  be  supposed  to  have 
been  within  the  contemplation  of  the  legislature,  though 
it  has  not  expressed  them  in  words. 

A  widow  woman  was  indicted  before  Mr.  Justice  Fos- 
ter, on  the  9th  and  10th  Wm.  Ill,  c.  41,  for  having  in  her 

»  L.  47,  s.  De  Legibus.  "  PufiFendorf,  lib.  v.  c.  12;  2  East's  P.  C.  Tfio. 


96  WILLS    ON   CIRCUMSTANTIAL   EVIDENCE. 

custody  divers  pieces  of  canvas  marked  with  the  king's 
mark,  she  not  being  employed  by  the  Commissioners 
of  the  Navy  to  make  the  same  for  the  king's  use.  The 
canvas  was  marked  as  charged  in  the  indictment,  and 
was  clearly  proved  to  be  such  as  was  made  for  the  use  of 
the  navy,  and  to  have  been  found  in  the  defendant's  cus- 
tody. She  did  not  attempt  to  show  that  she  was  within 
any  exception  of  the  act,  as  being  a  person  employed  to 
make  canvas  for  the  navy ;  nor  did  she  offer  to  produce 
any  certificate  from  any  officer  of  the  crown,  touching  the 
occasion  of  such  canvas  coming  into  her  possession.  Her 
defence  was,  that  when  there  happened  to  be  in  his  Maj- 
esty's stores  a  considerable  quantity  of  old  sails,  no 
longer  fit  for  that  use,  it  had  been  customary  for  the  per- 
sons entrusted  with  the  stores  to  make  a  public  sale  of 
them  in  lots,  larger  or  smaller,  as  best  suited  the  pur- 
pose of  the  buyers ;  and  that  the  canvas  produced  in 
evidence,  which  had  been  made  up  long  since,  some  for 
table  linen,  and  some  for  sheeting,  had  been  in  common 
use  in  the  defendant's  family  a  considerable  time  before 
her  husband's  death ;  and  upon  his  death  came  to  the 
defendant,  and  had  been  used  in  the  same  open  manner 
by  her  to  the  time  of  prosecution.  The  counsel  for  the 
crown  insisted  that  as  the  act  allows  of  but  one  excuse, 
the  defendant,  unless  she  could  avail  herself  of  that,  could 
not  resort  to  any  other ;  that,  if  the  canvas  were  really 
bought  of  the  commissioners,  or  of  persons  acting  under 
them,  there  ought  to  have  been  a  certificate  taken  at 
the  time  of  the  purchase,  and  that  the  second  section 
admits  of  no  other  excuse.  But  the  learned  judge  was 
of  opinion  that  though  the  clause  of  the  statute  which 
directs  the  sale  of  these  things  had  not  pointed  out  any 
other  way  of  indemnifying  the  buyer  than  the  certificate, 


STATUTORY    PRESUMPTIONS.  97 

and  though  the  second  section  seemed  to  exclude  any 
other  excuse  for  those  in  whose  custody  they  should  be 
found,  yet  still  the  circumstances  attending  every  case 
which  might  seem  to  fall  within  the  act  ought  to  be  taken 
into  consideration,  otherwise  a  law  calculated  for  wise 
purposes  might,  by  a  too  rigid  construction  of  it,  be  made 
a  handle  for  oppression.  There  was  no  room  to  say  that 
this  canvas  came  into  the  possession  of  the  defendant  by 
any  act  of  her  own ;  it  was  brought  into  family  use  in 
the  lifetime  of  her  husband,  and  continued  so  to  the  time 
of  his  death  ;  and  by  act  of  law  it  came  to  her.  Things 
of  that  kind  had  frequently  been  exposed  to  public  sale ; 
and  though  the  act  pointed  out  an  expedient  for  the  in- 
demnity of  buyers,  yet  probably  few  buyers,  especially 
where  small  quantities  had  been  purchased  at  one  sale, 
had  used  the  caution  suggested  by  the  act.  And  if  the 
defendant's  husband  really  bought  the  linen  at  a  public 
sale,  but  neglected  to  take  a  certificate,  or  did  not  pre- 
serve it,  it  would  be  contrary  to  natural  justice,  after 
>uch  a  length  of  time,  to  punish  her  for  his  neglect. 
He  therefore  thought  the  evidence  given  by  the  defend- 
ant proper  to  be  left  to  the  jury ;  and  directed  them, 
that  if  upon  the  whole  evidence  they  were  of  opinion 
that  the  defendant  came  to  the  possession  of  the  linen 
without  any  fraud  or  misbehavior  on  her  part,  they, 
would  acquit  her ;  and  she  was  accordingly  acquitted." 

In  a  similar  case  Lord  Kenyon  said,  that  though  in 
prosecutions  under  the  statutes  9  &  10  Wm.  Ill,  c.  41, 
and  17  Geo.  II,  c.  40,  s.  10,  it  was  sufficient  for  the 
crown  to  prove  the  finding  of  the  stores  with  the  king's 
mark  in  the  defendant's  possession,  to  call  upon  him  to 
account  for  that  possession,  so  as  to  throw  upon  him 

a  Foster's  C.  L.  App.  439. 

7 


98  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

the  onus  of  proving  that  he  had  legally  become  pos-. 
sessed  of  them,  yet  that  he  had  other  means  of  showing 
that  he  had  lawfully  become  possessed  of  them  than  by 
the  production  of  the  certificate  from  the  Navy  Board ; 
as  for  example,  he  might  show  that  he  had  bought  them 
from  another  person  who  was  in  the  practice  of  buying 
stores  at  the  navy  sales,  and  who,  therefore,  might  fairly 
be  presumed  to  have  had  the  regular  certificate,  but  who, 
when  he  sold  part  to  the  defendant,  could  not,  consist- 
ently with  his  own  safety,  part  with  the  certificate  he 
had  obtained  of  his  having  been  the  purchaser  of  the 
whole  lot.*  Where  a  defendant,  charged  with  the  un- 
lawful possession  of  two  lots  of  marked  metal  stores, 
produced  in  his  defence  two  certificates  in  respect  of 
several  lots,  signed  respectively  by  the  Commodore 
Superintendent  of  the  Woolwich  Dockyard  and  the 
Secretary  to  the  Board  of  Ordnance,  the  former  having 
been  granted  to  the  person  from  whom  he  purchased, 
the  latter  to  the  defendant  himself,  it  was  held  that 
these  circumstances,  though  not  strictly  in  accordance 
with  the  statute  9  &  10  Wm.  Ill,  c.  41,  were  neverthe- 
less an  answer  to  the  charge ;  Mr.  Justice  Coltman  said 
that,  although  the  certificates  were  not  strictly  in  con- 
formity with  the  act,  the  Government  ought  not  to  dis- 
pute their  validity.''  It  must  also  appear  that  the  goods 
were  on  the  defendant's  premises  with  his  knowledge, 
and  he  is  not  responsible  if  they  were  improperly  re- 
ceived by  his  servants  without  his  knowledge.*" 

Upon  an  indictment  on  the  statute  5  &  6  Wm.  IV,  c. 
19,  which  makes  it  a  misdemeanor  in  the  master  of  a 
vessel  to  leave  a  seaman  behind,  and  enacts  that  the 

*  Rex  V.  Banks,  1  Esp.  144.  ^  Reg.  v.  Wilmet,  ih. 

«  Reg.  V.  Wilmet,  3  Cox's  C.  C.  281. 


SCIENTIFIC    TESTIMONY.  9 'J 

only  defence  which  he  can  set  up  is  the  production  of 
the  certificate  of  the  consul  or  other  party  mentioned  in 
the  statute,  it  was  held,  nevertheless,  that  a  defendant 
might  show  that  it  was  impracticable  to  obtain  such  cer- 
tificate,* and  this  qualification  has  been  introduced  into 
the  subsequent  statute,  7  &  8  Vict.  c.  112,  s.  48. 

In  like  manner,  although  the  repealed  statute,  21  Jac. 
I,  c.  27,  made  the  concealment  of  the  death  of  an  illegit- 
imate child  conclusive  evidence  of  murder  by  the  mother, 
except  she  could  prove  by  one  witness  at  least  that  it 
was  actually  born  dead,  nevertheless  in  the  construction 
of  that  law  it  was  usual  to  require  that  some  sort  of 
presumptive  evidence  should  be  given  that  the  child  was 
born  alive,  before  the  other  constrained  presumption,  that 
the  child  whose  death  was  concealed  was  therefore  killed 
by  its  parent,  was  admitted  to  convict  the  prisoner.*" 

Section  9. 
scientific  testimony. 

The  testimony  of  skilled  or  scientific  witnesses  con- 
stitutes a  very  important  source  of  circumstantial  evi- 
dence, especially  in  regard  to  the  proof  of  the  corpus 
delicti  in  cases  of  suspected  homicide,  and  in  questions 
concerning  the  doli  capax.  Such  evidence  in  its  details 
belongs  to  other  departments  of  science ;  but  as  the 
principles  which  govern  its  reception  and  application  fall 
exclusively  within  the  province  of  jurisprudence,  some 
general  observations  upon  it  are  therefore  necessary. 

If  it  be  true  that  proof  is  nothing  more  than  a  pre- 

a  Reg.  V.  Dunnett,  1  C.  «fe  K.  425. 

b  Bl.  Comm.  (by  Stephen)  b.  iv,  c.  xii. 


100  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

sumption  of  the  highest  order,*"  a  fortiori  is  such  the 
case  with  respect  to  the  testimony  of  skilled  or  scientific 
witnesses,  which  not  unfrequently  presents  a  sequence 
of  presumptions  grounded  upon  conflicting  opinions,  even 
with  regard  to  the  actual  state  of  science.  Such  testi- 
mony is  therefore  of  a  nature  8ui  generis,  and,  according 
to  the  attainments  and  means  of  knowledge  of  the  wit- 
ness, may  be  of  little  moment,  or  deserving  of  entire 
and  undoubting  confidence. 

Science,  moreover,  is  never  final ;  and  new  facts  are 
every  day  found  to  disturb  or  modify  long-established 
convictions.  Thus  Reinsch's  test,  which  had  long  been 
confidently  employed  for  the  separation  of  arsenic,  has 
lately  been  discovered  to  be  fallacious  when  applied  to 
chlorate  of  potass,  and  the  arsenic  which  was  found  in 
the  particular  mixture  had  been  set  free  from  the  copper 
employed  in  the  experiment.^ 

In  many  countries  this  kind  of  testimony,  technically 
termed  exj)eriise,  is  invested  with  a  sort  of  semi-official 
authority,  and  special  rules  are  laid  down  for  the  esti- 
mation of  its  proving  force.''  By  the  law  of  England, 
however,  no  peculiar  authority  is  given  to  the  testimony 
of  witnesses  of  this  description ;  its  value  is  estimated  by 
the  same  general  principles  as  are  applied  in  estimating 
the  capacity,  credit,  and  weight  of  all  other  witnesses,'' 
and  the  courts  have  wisely  repelled  all  attempts  to  de- 
part from  the  established  and  ordinary  rules  of  evidence 
and  judgment.  On  a  trial  for  murder,  before  Lord  Chief 
Justice  Tindal,  several  medical  witnesses,  who  had  been 
present  during  the  trial  and  heard  the  whole  of  the  evi- 

a   Ut  finjvft,  p.  32. 

'  b  Reg.  ('.  Smethurst,  C.  C.  C.  Aug.  1859,  Sess.  Papers. 

<=  Mittermaier,  ut  stipra,  c.  126,  et  acq. 
d  See  Best's  Prin.  of  Ev.  385,  et  seq. 


SCIENTIFIC   TESTIMONY.  lOl 

dence,  but  had  no  other  means  of  forming  an  opinion  on 
•the  question,  were  admitted  to  testify  that  in  their 
judgment  the  prisoner  was  insane.  But  the  propriety 
of  admitting  such  evidence  having  been  made  the  sub- 
ject of  discussion  in  the  House  of  Lords,  the  question 
was  submitted  to  the  judges,  who  were  of  opinion  that 
a  medical  witness  could  not  in  strictness  be  asked  his 
opinion  as  to  the  state  of  the  prisoner's  mind  at  the  time 
of  the  commission  of  the  alleged  crime,  or  whether  he 
was  conscious  at  the  time  of  doing  the  act  that  he  was 
acting  contrary  to  law,  or  whether  he  was  laboring  under 
any  and  what  delusions,  because  each  of  those  questions 
involves  the  determination  of  the  truth  of  the  facts  de- 
posed to,  which  it  is  for  the  jury  to  decide,  and  the 
questions  are  not  mere  questions  upon  a  matter  of 
science ;  in  which  case  such  evidence  is  admissible ;  but 
that  where  the  facts  are  admitted,  or  not  disputed,  and 
the  question  becomes  substantially  one  of  science  only, 
it  may  be  convenient  to  allow  the  question  to  be  put  in 
that  general  form,  though  the  same  cannot  be  insisted 
on  as  matter  of  right.* 

On  a  subsequent  occasion,  Mr.  Baron  Alderson,  with 
the  concurrence  of  Mr.  Justice  Cresswell,  refused  to  al- 
low a  witness  to  be  asked  whether,  from  all  the  evidence 
he  had  heard,  both  for  the  prosecution  and  defence,  he 
was  of  opinion  that  the  prisoner  at  the  time  he  committed 
the  act  was  of  unsound  mind,  and  said  that  the  proper 
mode  is  to  ask  what  are  the  symptoms  of  insanity,  or  to 
take  particular  facts,  and,  assuming  them  to  be  true,  to 
ask  whether  they  indicate  insanity  on  the  part  of  the 
prisoner ;  but  to  take  the  course  suggested,  he  said,  was 
really  to  substitute  the  witness  for  the  jury,  and  to  al- 

a  Reg.  V.  M'Naghten,  10  CI.  &  F.  200  j  1  0.  &  K.  138;  8  Scott,  N.  R.  595. 


102  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

low  him  to  decide  upon  the  whole  case ;  that  the  jury 
must  have  the  facts  before  them,  and  that  they  alone 
must  interpret  them  by  the  general  opinions  of  scientific 
men.*  Upon  a  trial  for  murder,  where  the  death  was 
alleged  to  have  been  caused  by  suffocation,  a  physician 
who  had  attended  in  court  and  heard  the  evidence  was 
asked  his  opinion  as  to  the  cause  of  death ;  but  Mr.  Jus- 
tice Patteson  expressed  himself  very  strongly  upon  the 
unsatisfactory  nature  of  such  evidence,  the  witness  not 
having  seen  the  body,  and  his  opinion  being  founded  on 
the  facts  stated  by  other  witnesses.*'  These  cases  have 
been  followed  by  a  series  of  determinations  in  which 
such  evidence  has  been  held  to  be  inadmissible.'' 

The  reasonable  principle  appears  to  be  that  scientific 
witnesses  shall  be  permitted  to  testify  only  to  such  mat- 
ters of  fact  as  have  come  within  their  own  cognizance,  or 
as  they  have  acquired  a  knowledge  of  by  their  reading, 
and  to  such  inferences  from  them,  or  from  other  facts  pro- 
visionally assumed  to  be  proved,  as  their  particular  studies 
and  pursuits  especially  qualify  them  to  draw;  so  that  the 
jufy  may  thus  be  furnished  with  the  necessary  scientific 
criteria  for  testing  the  accuracy  of  their  conclusions,  and 
enabled  to  form  their  own  independent  judgment  by 
the  application  of  those  criteria  to  the  facts  established 
in  evidence  before  them. 

But  where  the  witnesses  are  men  of  unquestionable 
character  and  ability,  it  can  hardly  be  material  whether 
the  question  is  asked  in  a  more  or  less  dire.ct  form;  espe- 
cially as  there  can  be  no  difficulty  in  so  shaping  the  ques- 

a  Reg.  V.  Francis,  4  Cox's  C.  C.  57. 

•>  Reg.  V.  Newton,  Shrewsbury  Spring  Ass.  1850,  infra. 

"  Reg.  V.  Pate,  C.  C.  C.  12  July,  1850  ;  Doe  d.  Bainbridge  v.  Bainbridge,  coram 
Campbell,  L.  C.  J.,  Stafford  Summer  Ass.  1850;  Cox's  C.  C.  454;  Reg.  v.  Leyton, 
ib.  149,  coram  Rolfe,  B. 


SCIENTIFIC    TKSTIMONY.  103 

tion  as  to  mask  while  it  substantially  involves  the  precise 
objection;  and  in  several  late  casesmedical  witnesses  have 
been  permitted  without  objection  to  <^ive  their  opinions  as 
to  sanity  of  parties  charged  with  crime,  as  grounded 
upon  the  evidence  that  had  been  adduced  both  for  the 
prosecution  and  the  defence  ;  though,  if  made,  the  objec- 
tion must  of  course  prevail.* 

It  is  scarcely  necessary  to  add  that  scientific  evidence 
being  generally  matter  of  opinion,  can  seldom  be  impli- 
citly adopted.  Lord  Cottenham  said  he  had  seen  enough 
of  professional  opinions  to  be  aware  that  in  matters  of 
doubt,  upon  which  the  best  constructed  and  best  informed 
minds  may  differ,  there  is  no  difficulty  in  procuring 
opinions  on  either  side.^ 

A  learned  writer  on  the  Law  of  Scotland  observes,  that 
'"  there  is  perhaps  no  kind  of  testimony  more  subject  to 
bias  in  favor  of  the  adducer  than  that  of  skilled  wit- 
nesses ;  for  many  men,  who  would  not  willingly  misstate 
a  simple  fact,  can  accommodate  their  opinions  to  the 
wishes  of  their  employers,  and  the  connection  between 
them  tends  to  warp  the  judgment  of  the  witnesses  with- 
out their  being  conscious  of  it ;  and  hence  skilled  wit- 
nesses, in  questions  of  handwriting,  can  usually  be  got  in 
equal  numbers  on  either  side ;  and  engineers  are  more 
frequently  like  counsel  for  their  employers  than  like  wit- 
nesses giving  their  real  opinions  on  oath," "  Nor  is  it 
possible,  after  the  discreditable  exhibitions  which  have 
lately  taken  place  in  our  courts  of  justice,  to  restrict  the 
foregoing  reproaches  to  witnesses  taken  from  the  partic- 

»  Reg.  V.  Baranelli,  C.  C.  C.  Ap.  1855:  Reg.  v.  Westron,  C.  C.  C.  Feb.  1856; 
Starkie's  L.  of  Ev.  4th  ed.  175. 

b  Dyce  Sombre's  case,  1  M'N.  &  Gort.  128. 

"  2  Dickson  on  the  L.  of  Ev.  tit  supra,  996 ;  and  see  the  language  of  Lord  Camp- 
bell in  the  Tracey  Peerage,  10  C.  &  F.  191. 


104  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

ular  professions  which  have  been  enumerated.  Happily, 
however,  such  cases  are  but  exceptional ;  and  true  scien- 
tific knowledge,  under  the  government  of  high  principle, 
is  of  the  greatest  value,  as  subsidiary  to  the  ends  of 
justice.* 

Some  valuable  remarks  upon  this  kind  of  evidence 
were  made  by  Lord  Chief  Justice  Cockburn,  upon  a  trial 
for  murder,  at  Taunton  Spring  Assizes,  1857.  The  mur- 
der was  effected  by  cutting  the  throat.  A  knife  was  found 
on  the  person  of  the  prisoner,  with  stains  of  blood  upon 
it;  and  it  was  contended  that  the  murder  had  been  effected 
with  this  weapon,  while  it  was  alleged  on  the  part  of  the 
prisoner  that  it  had  been  used  for  cutting  raw  beef.  A 
professional  analyst  called  on  the  part  of  the  prosecution 
stated  that  the  blood  had  not  coagulated  till  it  was  on 
the  knife,  that  the  knife  had  been  immersed  in  living 
blood  up  to  the  hilt,  and  that  it  was  not  the  blood  of  an 
ox,  a  sheep,  or  a  pig.  His  opinion  was  grounded  upon  the 
relative  sizes  of  the  globules  of  blood  in  man  and  other 
animals,  that  of  man  being  stated  to  be  l-3400th  of  an 
ii\ch,  of  the  ox  l-5300th,  of  the  sheep  l-5200th,  and  of 
the  pig  l-4500th,  the  relative  sizes  being  as  53  to  34  in 
the  ox,  52  to  34  in  the  sheep,  and  45  to  34  in  the  pig.  The 
learned  judge  said,  "  The  witness  had  said  the  blood  on 
the  knife  could  not  be  the  blood  of  an  animal  as  stated  by 
the  prisoner,  and  took  upon  himself  to  say  that  it  was 
not  the  blood  of  a  dead  animal ;  that  it  was  living  blood, 
and  that  it  was  human  blood,  and  he  had  shown  them  the 
marvellous  powers  of  the  modern  microscope.  At  the  same 
time,  admitting  the  great  advantages  of  science,  they  were 
coming  to  great  niceties  indeed  when  they  speculated 

»  On  the  subject  of  scientific  evidence  in  cases  of  poisoning,  see  infra,  Ch.  VII.  s. 
4 ;  and  of  infanticide,  ib.  s.  5. 


SCIENTIFIC    TESTIMONY.  105 

lapon  things  almost  beyond  perception,  and  he  would  ad- 
vise the  jury  not  to  convict  on  this  scientific  speculation 
alone."  The  case  was  conclusive  on  the  general  evi- 
dence.* 

The  following  cases  are  remarkable  as  exemplifying 
the  inconclusiveness  of  scientific  evidence,  when  uncor- 
roborated by  conclusive'  facts,  physical  or  moral : 

A  young  man  was  tried  for  the  murder  of  his  brother, 
who  resided  with  their  father  and  overlooked  his  farm. 
The  prisoner,  who  lived  about  twenty  miles  from  his 
father  s  house,  went  on  a  visit  to  him,  jind  on  the  day  after 
his  arrival  his  brother  was  found  dead  in  the  stable,  not 
far  from  a  vicious  mare,  with  her  traces  upon  his  arm 
and  shoulders  ;  two  other  horses  were  in  the  stable,  but 
they  had  their  traces  on.  Suspicion  fell  upon  the  pris- 
oner, who  was  on  ill  terms  with  his  brother,  and  the 
question  was  whether  the  deceased  had  been  killed  with 
a  spade,  or  by  kicks  from  the  mare.  The  spade  was 
bloody,  but  it  had  been  inadvertently  used  by  a  boy  in 
cleaning  the  stable ;  and  the  cause  of  death  could  only 
be  determined  by  the  character  of  the  wounds.  There 
were  two  straight  incised  wounds  on  the  left  side  of 
the  head,  one  about  five  and  the  other  about  two  inches 
long,  which  had  apparently  been  inflicted  by  an  obtuse 
instrument.  On  the  right  side  of  the  head  there  were 
three  irregular  wounds,  two  of  them  about  four  inches 
in  length,  partaking  of  the  appearance  both  of  lacerated 
and  incised  wounds.  There  was  also  a  w^ound  on  the 
back  part  of  the  head,  about  two  inches  and  a  half  long. 
There  was  no  tumefiiction  around  any  of  the  wounds, 
the  integuments  adhering  firmly  to  the  bones ;  and.  ex- 
cept where  the  wounds  were  inflicted,  the  fracture  of 

a  Reg.  f.  Nation,  Taylor's  Med.  Jour.  279. 


106  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

the  skull  was  general  throughout  the  right  side,  and  ex- 
tended along  the  back  of  the  head  toward  the  left  side, 
and  a  small  part  of  the  temporal  bone  came  away.  The 
deceased  was  found  with  his  hat  on,  which  was  bruised, 
but  not  cut,  and  there  were  no  wounds  on  any  other  part , 
of  the  body.  Two  surgeons  expressed  a  positive  opin- 
ion that  the  wounds  could  not  have  been  inflicted  by 
kicks  from  a  horse,  grounding  that  opinion  principally 
on  the  distinctness  of  the  wounds,  the  absence  of  contu- 
sion, the  firm  adherence  of  the  integuments,  and  the 
straight  lateral  direction  and  similarity  of  the  wounds ; 
whereas,  as  they  stated,  the  deceased  would  have  fallen 
from  the  first  blow  if  he  had  been  standing,  and  if  lying 
down,  the  wounds  would  have  been  perpendicular ;  and, 
moreover,  they  were  of  opinion  that  the  wounds  could 
not  have  been  inflicted  if  the  hat  had  been  on  the  de- 
ceased's head  without  cutting  the  hat,  and  that  he  could 
not  have  put  on  his  hat  after  receiving  any  of  the  wounds. 
The  learned  judge,  however,  stated  that  he  remembered 
a  trial  at  the  Old  Bailey  where  it  had  been  proved  that 
a  cut  and  a  fracture  had  been  received  without  having  cut 
the  hat ;  and  evidence  was  adduced  of  the  infliction  of 
a  similar  wound  by  a  kick  without  cutting  the  hat.  The 
prisoner  was  acquitted.'' 

A  woman  who  was  tried  for  the  murder  of  her  mother 
had  lived  for  nine  or  ten  years  as  housekeeper  to  an 
elderly  gentleman,  who  was  paralyzed  and  helpless ;  the 
only  other  inmate  being  another  female  servant,  who 
slept  on  a  sofa  in  Ms  bedroom  to  attend  upon  him.  The 
deceased  occasionally  visited  her  daughter  at  her  mas- 
ter's house,  and  sometimes  stopped  all  night,  sleeping 
on  a  sofa  in  the  kitchen.     She  came  to  see  her  daughter 

*  Rex  V.  Booth,  Warwick  Spring  Assizes,  1808,  coram  Mr.  Baron  Wood. 


SCIENTIFIC    TESTIMONY.  107 

about  eight  o'clock  one  night,  in  December,  1848 ;  the 
other  servant  retired  to  bed  about  half-past  nine,  leav- 
ing the  prisoner  and  her  mother  in  the  kitchen,  and  she 
afterwards  heard  the  prisoner  close  the  door  at  the  foot 
of  the  stairs,  which  was  usually  left  open  that  they 
might  hear  their  master  if  he  wanted  assistance.  About 
two  o'clock  in  the  morning  she  was  aroused  by  the  smell 
of  fire,  and  a  sense  of  suffocation,  and  found  the  bed- 
room full  of  smoke ;  upon  which  she  ran  down  stairs, 
the  door  at  the  bottom  of  which  was  still  closed.  As 
she  went  down  stairs  she  saw  a  light  in  the  yard,  and 
she  found  the  kitchen  full  of  smoke,  and  very  wet,  par- 
ticularly near  the  fireplace,  as  also  was  the  sofa,  but 
there  was  very  little  fire  in  the  grate.  She  then  unfast- 
ened the  front  door,  and  ran  out  to  fetch  her  master's 
nephew,  who  lived  near,  and  who,  after  ascertaining  that 
his  uncle  was  safe,  went  into  the  kitchen,  and  threw  some 
water  on  the  sofa,  which  was  on  fire.  The  prisoner  then 
drank  to  intoxication  from  a  bottle  of  rum,  and  laid  her- 
self down  on  the  sofa.  The  pillows  and  entire  back  part 
of  the  sofa-cover  were  burnt  to  the  breadth  of  the  shoul- 
ders. The  remains  of  the  deceased  were  found  lying 
across  the  steps  of  the  brew-house,  and  on  the  back  of 
the  head  lay  a  piece  of  the  sofa-cover,  and  near  the  body 
was  a  cotton  bag  besmeared  with  oil,  which  had  been 
used  indiscriminately  as  a  bag  or  pillow.  Near  the  feet 
of  the  body  there  were  four  pairs  of  sheets,  which  had 
been  in  the  kitchen  the  night  before,  wet  and  almost 
entirely  consumed.  The  prisoner's  clothes  were  on  a 
chair  in  the  kitchen,  and  it  appeared  from  the  state  of 
the  bed-clothes  that  she  had  not  been  in  bed.  A  butter- 
boat, which  had  been  full  of  dripping,  and  a  pint  bottle, 
which  had  been  nearly  full  of  lamp-oil,  and  left  near  the 


108  WILLS    ON   CIRCUMSTANTIAL   EVIDENCE. 

fire  over-night,  were  both  empty,  and  there  were  spots 
of  grease  and  oil  on  the  pillow-case,  sheets,  and  sofa. 
A  stocking  had  been  hung  up  to  cover  a  crevice  in 
the  window-shutter,  through  which  any  person  out- 
side might  have  seen  into  the  kitchen.  The  door-post 
of  the  kitchen  leading  into  the  yard  was  much  burnt 
about  three  feet  high  from  the  ground ;  and  there  was 
a  mark  of  burning  on  the  door-post  of  the  brew-house. 
The  surface  of  the  body  was  completely  charred,  the 
tongue  was  livid  and  swollen,  and  one  of  the  toes  was 
much  bruised,  as  if  it  had  been  trodden  on.  There 
was  a  small  blister  on  the  inside  of  the  right  leg,  far 
below  where  the  great  burning  commenced,  which  con- 
tained straw-colored  serum,  but  there  was  no  other  blis- 
ter on  any  part  of  the  body,  nor  any  marks  of  redness 
around  the  blister,  or  at  the  parts  where  the  injured  and 
uninjured  tissues  joined.  The  nose,  which  had  been  a 
very  prominent  organ  during  life,  was  flattened  down  so 
as  not  to  rise  more  than  the  eighth  of  an  inch  above  the 
level  of  the  face,  and  as  it  never  recovered  its  original  ap- 
pearance, it  was  stated  that  it  must  have  been  so  flat- 
tened for  some  time  before  death.  The  lungs  and  brain 
were  much  congested,  and  a  quantity  of  black  blood  was 
found  in  the  right  auricle  of  the  heart.  From  these  facts 
the  medical  witnesses  examined  in  support  of  the  prose- 
cution concluded  that  the  deceased  had  been  first  suffu- 
cated  by  pressing  something  over  her  mouth  and  nostrils 
so  forcibly  as  to  break  and  flatten  the  nose  in  the  way 
described ;  but  they  had  made  no  examination  of  the 
larynx  and  trachea,  and  other  parts  of  the  body.  A 
physician,  who  had  heard  the  evidence  but  not  seen  the 
deceased,  gave  his  opinion  that  the  appearances  described 
by  the  other  witnesses  were  signs  of  death  by  suffocation  ; 


SCIENTIFIC   TESTIMONY.  109 

that  the  absence  of  vesication  and  of  the  line  of  redness 
were  certain  signs  that  the  body  had  been  burnt  after 
death  ;  but  he  added  that,  as  there  were  no  marks  of  ex- 
ternal injury,  an  examination  should  have  been  made  of 
the  parts  of  the  body  above  mentioned,  in  order  to  arrive 
at  a  satisf^Lctory  conclusion.  Another  medical  witness 
thought  it  possible  that  suffocation  might  have  been 
produced  by  the  flames  preventing  the  access  of  air  to 
the  lungs,  while  others  again  thought  it  impossible  that 
such  could  have  been  the  case,  as  no  screams  had  been 
heard  in  the  night,  and  they  were  also  of  opinion  that  if 
alive  the  deceased  must  have  been  in  such  intense  agony 
that  she  could  not,  if  she  had  been  strong  enough  to  walk 
from  the  kitchen  to  the  brew-house,  have  refrained  from 
screaming.  One  of  these  witnesses  stated  that  he  did 
not  think  it  possible  that  the  deceased,  if  alive,  could 
have  fallen  in  the  position  in  which  she  was  found,  as 
her  first  impulse  would  have  been  to  stretch  out  her 
arms  to  prevent  a  fall ;  but,  on  the  other  hand,  it  was 
urged  that  it  was  not  possible  to  judge  of  the  acts  of  a 
person  in  the  last  agonies  of  death  by  the  conduct  of  one 
in  full  life.  Under  the  will  of  her  grandfather  the  pris- 
oner was  entitled,  in  expectancy  on  the  demise  of  her 
mother,  to  the  sum  of  £200,  and  to  the  interest  of  the 
sum  of  £300,  for  her  life.  She  had  frequently  cruelly 
beaten  the  old  woman,  threatened  to  shorten  her  days, 
bitterly  reproached  her  for  keeping  her  out  of  her  prop- 
erty by  living  so  long,  and  declared  that  she  should 
never  be  happy  so  long  as  she  was  above  ground,  and 
she  had  once  attempted  to  choke  her  by  forcing  a  hand- 
kerchief down  her  throat,  but  was  prevented  from  doing 
so  by  the  other  servant.  The  magistrates  had  been  fre- 
quently appealed  to,  but  they  could  only  remonstrate. 


110  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

as  the  old  woman  would  not  appear  against  her  unnatural 
daughter.  The  case  set  up  on  behalf  of  the  prisoner  was, 
that  she  was  in  bed,  and  perceiving  a  smell  of  fire,  came 
down  stairs,  and  finding  the  sofa  on  fire,  fetched  water 
and  extinguished  it,  and  that  she  knew  nothing  of  her 
mother's  death  until  she  heard  of  it  from  others.  It  ap- 
peared that  the  old  woman  was  generally  very  chilly, 
and  in  the  habit  of  getting  near  the  fire ;  that  on  two 
former  occasions  she  had  burned  portions  of  her  dress ; 
that  on  another  she  had  burned  the  corner  of  the  sofa- 
cushion  ;  that  she  used  to  smoke  in  bed,  and  light  her 
pipe  with  lucifer  matches,  which  she  carried  in  a  basket ; 
and  that  on  the  night  in  question  she  had  brought  her 
pipe,  which  was  found  on  the  following  morning  in  her 
basket.  It  was  urged  as  the  probable  explanation  of 
the  position  in  which  the  body  was  found,  that,  finding 
herself  on  fire,  she  must  have  proceeded  to  the  brew- 
house,  where  she  knew  there  was  water,  and  leaned  in 
her  way  there  against  the  door-post,  and  that,  feeling 
cold  in  the  night,  she  had  wrapped  the  sheets  around 
her,  and  did  not  throw  them  off  until  she  reached  the 
yard.  The  prisoner,  though  accustomed  to  sleep  up 
stairs,  was  in  the  habit  of  undressing  in  the  kitchen, 
which  was  stated  to  be  the  reason  why  the  stocking  had 
been  so  placed  as  to  prevent  any  person  from  seeing  into 
the  kitchen.  Mr.  Justice  Patteson,  in  his  charge  to  the 
jury,  characterized  the  evidence  of  the  medical  practi- 
tioners who  had  examined  the  body  as  extremely  un- 
satisfactory in  consequence  of  the  incompleteness  of 
their  examination ;  the  opinion  of  the  physician  who  had 
not  seen  the  body  was  also,  he  said,  very  unsatisfactory, 
as  substituting  him  for  the  jury ;  that  he  had  only  ex- 
pressed his  opinion  as  founded  upon  the  facts  stated  by 


SCIENTIFIC    TESTIMONY.  1  1  1 

the  other  witnesses ;  that  if  he  had  seen  the  body  him- 
self, his  views  might  have  been  materially  different ; 
that  the  other  witnesses  might  have  omitted  to  mention 
particulars  which  he  might  deem  of  the  greatest  import- 
ance, but  on  which  they  looked  as  of  no  significance ; 
that,  therefore,  opinions  expressed  on  such  partial  state- 
ments ought  to  be  received  with  the  greatest  reluctance 
and  suspicion ;  that  he  had  always  had  a  strong  opinion 
against  such  evidence,  as  tending  to  encroach  upon  the 
proper  duty  of  juries ;  and  he  recommended  them  to 
exercise  their  own  judgment  upon  the  other  evidence  in 
the  case,  Avithout  yielding  it  implicitly  to  the  authority 
of  this  witness.  The  jury  acquitted  the  prisoner;  and 
indeed  it  would  have  been  contrary  to  all  principle  to 
do  otherwise,  in  the  midst  of  so  much  uncertainty  as  to 
the  corjnis  delicti!^ 

*  Reg.  V.  Newton,  Salop  Spring  Ass.  1850.  Two  former  juries,  at  the  assizes  in 
the  preceding  year,  had  been  unable  to  agree,  and  had  been  discharged,  a  circum- 
stance unparalleled,  it  is  believed,  in  English  jurisprudence. 


CHAPTER  IV. 

EXTRINSIC  AND  MECHANICAL  INCULPATORY  INDI- 
CATIONS. 


Inculpatory  circumstances  of  an  extrinsic  and  me- 
chanical nature  are  such  as  are  derived  from  the  phys- 
ical peculiarities  and  characterictics  of  persons  and 
things,  from  facts  and  objects  which  bear  a  relation  to 
our  corporeal  nature,  and  are  apparently  independent  of 
moral  indications.  Such  facts  are  intimately  related  to. 
and,  as  it  were,  dovetail  with,  the  corpus  delicti  ;  and  they 
are  the  links  which  establish  the  connection  between  the 
guilty  act  and  its  invisible  moral  origin.  It  is  impossi- 
ble even  to  classify,  and  still  less  to  attempt  an  enumer- 
ation of,  evidentiary  facts  of  the  kind  in  question,  except 
in  a  very  general  way ;  but  it  may  be  interesting  and 
instructive,  by  way  of  illustration,  to  advert  to  some  of 
the  principal  heads  of  such  evidence,  and  to  some  re- 
markable cases  which  have  occurred  in  the  records  of 
our  criminal  jurisprudence.  One  important  and  admon- 
itory result  of  such  an  enumeration  will  be  to  show  that 
all  such  facts  are  unavoidably  associated  with  attendant 
sources  of  error  and  fallacy. 

The  principal  facts  of  circumstantial  evidence,  of  an 
external  character,  relate  to  questions  of  identity,  of 
person ;  of  things  ;  of  handwriting ;  and  of  time  ;  but 
there  must  necessarily  be  a  number  of  isolated  facts 
which  admit  of  no  specific  classification. 


IDENTIFICATION   OF   PERSON. 


Section  1. 


IDENTIFICATION   OF    PERSON. 


In  the  investigation  of  every  allegation  of  legal  crime, 
it  is  fundamentally  requisite  to  establish,  by  direct  or 
circumstantial  evidence,  the  identity  of  the  individual 
accused  as  the  party  who  committed  the  imputed  offence. 
It  might  be  concluded,  by  persons  not  conversant  with 
judicial  proceedings,  that  identification  is  seldom  at- 
tended with  serious  difficulty,  but  such  is  not  the  case. 
Illustrations  are  numerous  to  show  that  what  are  sup- 
posed to  be  the  clearest  intimations  of  the  senses  are 
sometimes  fallacious  and  deceptive,  and  some  extra- 
ordinary cases  have  occurred  of  mistaken  personal  iden- 
tity.'' Hence  the  particularity,  and  as  unreflecting  per- 
sons too  hastily  conclude,  the  frivolous  minuteness  of 
inquiry,  by  professional  advocates,  as  to  the  causa  scien- 
tice,  in  cases  of  controverted  identity,  whether  of  persons 
or  of  things. 

Two  men  were  convicted  before  Mr.  Justice  Grose  of 
a  murder,  and  executed;  and  the  identity  of  the  prisoners 
was  positively  sworn  to  by  a  lady  who  was  in  company 
with  the  deceased  at  the  time  of  the  robbery  and  murder; 
but  several  years  afterwards  tw^o  men,  who  suffered  for 
other  crimes,  confessed  at  the  scaffold  the  commission 
of  the  murder  for  which  these  persons  were  executed.^' 

A  young  man  was  tried  at  the  Old  Bailey,  July, 
1824,  on  five  indictments  for  different  acts  of  theft.    It 

*  Rex  V.  Wood  and  Brown,  iit  supra,  33 ;  Rex  r.  Coleman,  vt  mipra,  68,  82  ;  Reg. 
I'.  Markham,  sentenced  to  four  years'  penal  servitude  for  uttering  a  forged  check,. 
0.  B.  1856,  but  subsequently  pardoned  on  the  conviction  of  the  real  offender. 

'-  Rex  V.  Clinch  and  Mackley,  3  P.  &  F.  144,  and  Sess.  Pap.  1797. 


114  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

appeared  that  a  person  resembling  the  prisoner  in  size 
and  general  appearance  had  called  at  various  shops  in 
the  metropolis  for  the  purpose  of  looking  at  books, 
jewelry,  and  other  articles,  with  the  pretended  intention 
of  making  purchases,  but  made  off  with  the  property 
placed  before  him  while  the  shopkeepers  were  engaged 
in  looking  out  other  articles.  In  each  of  these  cases  the 
prisoner  was  positively  identified  by  several  persons, 
while  in  the  majority  of  them  an  alibi  was  as  clearly  and 
positively  established,  and  the  young  man  was  proved 
to  be  of  orderly  habits  and  irreproachable  character,  and 
under  no  temptation  from  want  of  money  to  resort  to 
acts  of  dishonesty.  Similar  depredations  on  other  trades- 
men had  been  committed  by  a  person  resembling  the 
prisoner,  and  those  persons  deposed  that,  though  there 
was  a  considerable  resemblance  to  the  prisoner,  he  was 
not  the  person  who  had  robbed  them.  He  was  convicted 
upon  one  indictment,  but  acquitted  on  all  the  others ; 
and  the  judge  and  jurors  who  tried  the  last  three  cases 
expressed  their  conviction  that  the  witnesses  had  been 
mistaken,  and  that  the  prosecutor  had  been  robbed  by 
another  person  resembling  the  prisoner.  A  pardon  was 
immediately  procured  in  respect  of  that  charge  on  which 
the  conviction  had  taken  place.* 

A  few  months  before  the  last-mentioned  case,  a  re- 
spectable young  man  was  tried  for  a  highway  robbery 
committed  at  Bethnal  Green,  in  which  neighborhood 
both  he  and  the  prosecutor  resided.  The  prosecutor 
swore  positiA^ely  that  the  prisoner  was  the  man  who 
robbed  him  of  his  watch.  A  young  woman,  to  whom 
■tlie  prisoner  paid  his  addresses,  gave  evidence  which 
proved  a  complete  alibi.     The  prosecutor  was  then  or- 

"  Rex  V.  Robinson,  Old  Bailey,  Sessions  Papers,  lS2-i. 


IDENTIFICATION   OF   PERSON.  115 

dered  out  of  court,  and  in  the  interval  another  young 
man,  who  awaited  his  trial  on  a  capital  charge,  was 
introduced  and  placed  by  the  side  of  the  prisoner.  The 
prosecutor  was  again  put  into  the  witness-box,  and  ad- 
dressed by  the  prisoner's  counsel  thus  :  "  Remember,  the 
life  of  this  young  man  depends  upon  your  reply  to  the 
question  I  am  about  to  put :  Will  you  swear  again  that 
the  young  man  at  the  bar  is  the  person  who  assaulted 
and  robbed  you  ?"  The  witness  turned  his  head  toward 
the  dock,  when  beholding  two  men  so  nearly  alike,  he 
dropped  his  hat,  became  speechless  with  astonishment 
for  a  time,  and  at  length  declined  swearing  to  either. 
The  prisoner  was  of  course  acquitted.  The  other  young 
man  was  tried  for  another  offence  and  executed,  and  be- 
fore his  death  acknowledged  that  he  had  committed  the 
robbery  in  question.''  Upon  a  trial  for  burglary,  where 
there  was  conflicting  evidence  as  to  the  identity  of  the 
prisoner,  Mr.  Baron  BoUand,  after  remarking  upon  the 
risk  incurred  in  pronouncing  on  evidence  of  identity  ex- 
posed to  such  doubt,  said  that  when  at  the  bar  he  had 
prosecuted  a  woman  for  child-stealing,  tracing  her  b}'^ 
eleven  witnesses  buying  ribbons  and  other  articles  at 
various  places  in  London,  and  at  last  into  a  coach  at 
Bishopsgate,  whose  evidence  was  contradicted  by  a  host 
of  other  witnesses,  and  she  was  acquitted ;  and  that  he 
had  afterwards  prosecuted  the  very  woman  who  really 
stole  the  child,  and  traced  her  by  thirteen  witnesses. 
"  These  contradictions,"  said  the  learned  judge,  "  make 
one  tremble  at  the  consequences  of  relying  on  evidence 
of  this  nature,  unsupported  by  other  proof."  ^ 

As  incidental  to  the  establishment  of  identity,  the 

a  3  p.  &  F.  143 ;  Amos'  Great  Oyer  of  Poisoning,  265. 
*>  Rex  V.  Sawyer,  Reading  Ass. 


116  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

quantity  of  light  necessary  to  enable  a  witness  to  form  a 
satisfactory  opinion  has  occasionally  become  the  subject  of 
discussion.  A  man  was  tried  in  January,  1799,  for  shoot- 
ing at  three  Bow  street  officers,  who,  in  consequence  of 
several  robberies  having  been  committed  near  Hounslow, 
w^ere  employed  to  scour  that  neighborhood.  They  were 
attacked  in  a  post-chaise  by  two  persons  on  horseback, 
one  of  whom  stationed  himself  at  the  head  of  the  horses, 
and  the  other  went  to  the  side  of  the  chaise.  One  of  the 
officers  stated  that  the  night  was  dark,  but  that  from  the 
flash  of  the  pistols  he  could  distinctly  see  that  one  of  the 
robbers  rode  a  dark  brown  horse,  between  thirteen  and 
fourteen  hands  high,  of  a  very  remarkable  shape,  having 
a  square  head  and  thick  shoulders ;  that  he  could  select 
him  out  of  fifty  horses,  and  had  seen  him  since  at  a 
stable  in  Long  Acre ;  and  that  he  also  perceived  that 
the  person  at  the  side  glass  had  on  a  rough  shag  great- 
coat.'' Similar  evidence  was  given  on  a  trial  for  high 
treason ;  ^  and  in  a  case  of  burglary  before  the  Special 
Commission  at  York,  January,  1813,  a  witness  stated 
that  a  man  came  into  his  room  in  the  night,  and  caused  a 
light  by  striking  on  the  stone  floor  with  something  like 
a  sword,  which  produced  a  flash  near  his  face,  and  en- 
abled him  to  observe  that  his  forehead  and  cheeks  were 
blacked  over  in  streaks,  that  he  had  on  a  dark-colored 
top  coat  and  a  dark-colored  handkerchief,  and  was  a 
large  man,  from  which  circumstances,  and  from  his  voice, 
he  believed  the  prisoner  to  be  the  same  man.*"     In  an- 

a  Rex  V.  Haines,  3  P.  &  F.  144. 

b  Rex  V.  Byrne,  18  St.  Tr.  819. 

e  Rex  V.  Brook,  .31  St.  Tr.  1135,  1137;  but  see  "Traite  de  la  Preuv*,"  par  Des- 
quiron,  274,  where  it  is  stated  that  after  the  condemnation  of  a  man  for  murder,  on 
the  testimony  of  two  witnesses,  who  deposed  that  they  recognized  him  by  the  light 
from  the  discharge  of  a  gun,  experiments  were  made,  from  which  it  appeared  that 
such  recognition  was  impossible. 


IDENTIFICATION   OF    PERSON.  117 

other  case  a  gentleman  who  was  shot  at  while  driving 
home  in  his  gig,  and  wounded  in  the  elbow,  stated  that 
when  he  observed  the  flash  of  the  gnn,  he  saw  that  it 
was  levelled  towards  him,  and  that  the  light  enabled 
him  to  recognize  at  once  the  features  of  the  accused. 
On  cross-examination  he  stated  that  he  was  quite  sure 
he  could  see  him,  and  that  he  was  not  mistaken  as  to 
his  identity  :  but  the  prisoner  was  acquitted." 

The  liability  to  mistake  must  necessarily  be  greater 
w^here  the  question  of  identity  is  matter  of  deduction 
and  inference,  than  where  it  is  the  subject  of  direct 
evidence.  The  circumstances  from  w^hich  identity  may 
be  thus  inferred  are  innumerable,  and  admit  of  only  a 
very  general  classification,  of  which  the  following  are 
perhaps  the  most  remarkable  heads. 

Family  likeness  has  often  been  insisted  upon  as  a  rea- 
son for  inferring  parentage  and  identity.  In  the  Douglas 
case  Lord  Mansfield  said :  "  I  have  always  considered 
likeness  as  an  argument  of  a  child's  being  the  son  of  a 
parent ;  and  the  rather  as  the  distinction  between  indi- 
viduals in  the  human  species  is  more  discernible  than  in 
other  animals  ;  a  man  may  survey  ten  thousand  people 
before  he  sees  two  faces  perfectly  alike,  and  in  an  army 
of  a  hundred  thousand  men  every  one  may  be  known 
from  another.  If  there  should  be  a  likeness  of  feature, 
there  may  be  a  discriminancy  of  voice,  a  difierence  in  the 
gestures,  the  smile,  and  other  various  things ;  whereas  a 
family  likeness  runs  generally  through  all  these,  for  in 
everything  there  is  a  resemblance,  as  of  features,  size, 
attitude,  and  action."*^     But  in  a  case  in  Scotland,  where 

^  Reg.  V.  White,  Croydon  Summer  Assizes,  1839;  Taylor's  Medical  J.  331  (4th 
edition). 

i"  2  Collectanea  Juridica,  402 ;  Beck's  Medical  Jurisprudence,  371;  and  see  Re- 
port of  the  case  of  Doe  dem.  of  Day  v.  Day,  Huntingdon  Assizes,  July,  1793. 


118  WILLS   ON   CIRCUMSTANTL\L   EVIDENCE. 

the  question  was  who  was  the  father  of  a  certain  woman, 
an  allegation  that  she  had  a  strong  resemblance  in  the 
features  of  the  face  to  one  of  the  tenants  of  the  alleged 
father  was  held  not  to  be  relevant,  as  being  too  much 
a  matter  of  fancy  and  loose  opinion  to  form  a  material 
article  of  evidence;''  and  in  another  Scotch  case,  a  trial 
for  child-murder,  it  was  permitted,  after  proof  that  the 
child  had  six  toes,  to  ask  a  witness  whether  any  mem- 
bers of  the  prisoner's  family  had  supernumerary  fingers 
and  toes ;  though  the  inference  to  be  deduced  was  evi- 
dently only  matter  of  opinion.'' 

A  case  of  capital  conviction  occurred  a  few  years  ago 
where  the  prisoner  had  given  his  portrait  to  a  youth, 
which  enabled  the  police,  after  watching  a  month  in 
London,  to  recognize  and  apprehend  him ;  *"  and  photo- 
graphic likenesses*  now  frequently  lead  to  the  identifi- 
cation of  offenders.  It  is  well  known  that  shepherds 
readily  identify  their  sheep,  however  intermingled  with 
others;*^  and  offenders  are  not  unfrequently  recognized 
by  the  voice.^  Circumstances  frequently  contribute  to 
identification,  by  confining  suspicion  and  limiting  the 
range  of  inquiry  to  a  class  of  persons  ;  as  where  crimes 
have  been  committed  by  left-handed  persons  ;  ^  or  where, 
notwithstanding  simulated  appearances  of  external  vio- 
lence and  infraction,  the  offenders  must  have  been  do- 
mestics ;  as  in  the  case  mentioned  on  a  former  page,  of 
two  persons  convicted  of  murder,  who  created  an  alarm 
from  within  the  house ;  but  upon  whom,  nevertheless, 

^  Rutledge  v.  Carruthers,  Taif  s  L.  of  Ev.  443. 
^  1  Dickson's  L.  of  Ev.  vt  supra,  14. 
"  Rex  V.  Arden,  8  London  Med.  Gaz.  36. 
•^  Rex  V.  Oliver,  1  Syme's  Justiciary  Rep.  224. 
«  Rex  V.  Brook,  31  St.  Tr.  1135. 

'  Rex  V.  Okeman  and  others,  nt  supra,  91 :  Rex  v.  Richardson,  Rex  v.  Patch, 
infra. 


IDENTIFICATION    OF    PERSON.  119 

suspicion  fell,  from  the  circumstance  that  the  clew  on 
the  grass  surrounding  the  house  had  not  been  disturbed 
on  the  morning  of  the  murder,  which  must  have  been 
the  case  had  it  been  committed  by  any  other  than  in- 
mates.'' On  the  trial  of  a  gentleman's  valet  for  the  mur- 
der of  his  master,  it  appeared  that  there  W' ere  marks  on 
the  back  door  of  the  house,  as  if  it  had  been  broken  into, 
but  the  force  had  been  applied  from  within,  and  the  only 
way  by  which  this  door  could  be  approached  from  the 
back  was  over  a  wall  covered  with  dust,  which  lay  un- 
disturbed, and  over  some  tiling,  so  old  and  perished  that 
it  would  not  have  borne  the  weight  of  a  man ;  so  that 
the  appearance  of  burglarious  entry  must  have  been  con- 
trived by  a  domestic,  and  other  facts  conclusively  fixed 
the  prisoner  as  the  murderer.'' 

Identification  is  often  satisfactorily  inferred  from  the 
correspondence  of  fragments  of  garments,  or  of  written  or 
printed  papers,  or  of  other  articles  belonging  to  or  found 
in  the  possession  of  parties  charged  with  crime,  with  other 
portions  or  fragments  discovered  at  or  near  the  scene  of 
crime,  or  otherwise  related  to  the  corpus  delicti ;''  or  by 
means  of  wounds  or  marks  inflicted  upon  the  person  of 
the  offender.  A  woman  who  was  tried  for  setting  the 
prosecutor's  ricks  on  fire  had  been  met  near  the  ricks, 
about  two  hours  after  midnight,  and  a  tinder-box  was 
found  near  the  spot  containing  some  unburnt  cotton  rag, 
as  also  a  piece  of  a  woman's  neckerchief  in  one  of  the 
ricks  where  the  fire  had  been  extinguished.  The  piece 
of  cotton  in  the  tinder-box  was  examined  with  a  lens,  and 
the  witness  deposed  that  it  was  of  the  same  fabric  and 

*  Rex  V.  Jefferys  and  Swan,  ui  mipra  ;  Rex  v.  Scofield,  31  St.  Tr.  10(51;  and   see 
Mascardus,  nt  supra,  Concl.  ccLxxii. 
•>  Reg.  )'.  Courvoisier,  infra. 
■'  See  Mascardus,  ut  supra,  Concl.  dcccxxxi. 


120  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

pattern  as  a  gown  and  some  pieces  of  cotton  print  taken 
from  the  prisoner's  box  at  her  lodgings ;  that  a  necker- 
chief taken  from  a  bundle  belonging  to  the  prisoner, 
found  in  her  lodgings,  corresponded  with  the  color, 
pattern,  and  fabric  of  the  piece  found  in  the  rick,  and 
that  they  had  both  belonged  to  the  same  square ;  and 
from  the  breadth  of  the  hemming,  and  the  distance 
of  the  stitches  on  both  pieces,  as  well  as  from  the  cir- 
cumstance that  both  pieces  were  hemmed  with  black 
sewing  silk  of  the  same  quality  (whereas  articles  of  that 
description  are  generally  sewed  with  cotton),  he  clearly 
inferred  that  they  were  the  work  of  the  same  person. 
The  prisoner  was  capitally  convicted,  but  there  being 
reason  to  believe  that  she  was  of  unsound  mind,  she  was 
reprieved.* 

A  man  was  connected  with  the  robbery  of  a  bank  by 
the  fragment  of  a  key  found  in  the  lock  of  one  of  the  safes, 
which  an  ironmonger  proved  that  he  had  shortly  before 
made  for  the  prisoner ;''  and  a  servant-man  was  identi- 
fied with  the  larceny  of  a  number  of  sovereigns  by  the 
discovery,  in  the  lock  of  a  bureau  which  had  been  broken 
open,  of  a  small  piece  of  steel  which  had  formed  part  of 
the  blade  of  a  knife  belonging  to  him.*"  An  attempt  to 
murder,  by  sending  to  the  prosecutor  a  parcel,  consist- 
ing of  a  tin  case  containing  several  pounds  of  gunpowder, 
so  packed  as  to  explode  by  the  ignition  of  detonating- 
powder,  enclosed  between  two  pieces  of  paper,  connected 
with  a  match  fastened  to  the  lid  and  bottom  of  the  box, 
was  brought  home  to  the  prisoner  by  the  circumstance 
that  underneath  the  outer  covering  of  brown  j)aper  was 

'>■  Rex  V.  Hodges,  Warwick  Spring  Assizes,  1818,  coram  Mr.  Baron  Garrow. 

*>  Rex  V.  Heath,  Alison's  Prin.  ut  supra,  318. 

"  Reg.  V.  Crump,  Stafford  Summ.  Ass.  1851,  coram  Mr.  Justice  Erie. 


IDENTIFICATION    OF    PERSON.  121 

found  a  portion  of  the  "Leeds  Intelligencer"  of  the  0th 
of  Jnly,  1832,  the  remaining  portion  of  which  identiml 
paper  was  found  in  his  house/'  In  other  cases  identifi- 
cation has  been  established  by  the  correspondence  of  the 
wadding  of  a  pistol,  which  stuck  in  a  wound,  and  was 
part  of  a  ballad,  which  corresponded  with  another  part 
found  in  the  prisoner's  possession;  ^  and  by  the  like  cor- 
respondence of  the  wadding  of  firearms  with  part  of  a 
newspaper  of  which  the  remainder  was  found  in  the  pos- 
session of  the  prisoner.*' 

A  Spaniard  was  convicted  of  having  occasioned  a  griev- 
ous injury  to  an  officer  of  the  post-office,  by  means  of 
several  packets  containing  fulminating  powder,  put  by 
him  into  the  post-office,  one  of  which  exploded  in  the  act 
of  stamping.  The  letters,  which  were  in  Spanish,  and  one 
of  them  subscribed  Avith  the  prisoner's  name,  were  ad- 
dressed to  persons  at  Havana  and  Matanzas,  who  ap- 
peared to  be  the  objects  of  the  writer's  malignant  inten- 
tions. There  was  no  proof  that  the  letters  w^ere  in  the 
prisoner's  handwriting,  but  he  was  proved  to  have  landed 
at  Liverpool  on  the  20th  of  September,  and  to  have  put 
several  letters  into  the  post-office  on  the  evening  of  the 
22d,  the  explosion  having  occurred  on  the  24th ;  and 
there  was  found  upon  his  person  a  seal  which  corre- 
sponded with  the  impression  upon  the  letters,  which  cir- 
cumstance (though  there  were  other  strong  facts)  was 
considered  as  conclusive  of  his  guilt,  and  he  was  accord- 
ingly convicted  and  sentenced  to  two  years'  imprison- 
ment.*^ On  a  trial  for  the  forgery  of  a  document,  the 
impression  of  a  seal  attached  to  it  corresponded  with 

a  Rex  V.  Mountford,  Stafford  Sum.  Ass.  1835,  1  Moody's  C.  C.  441. 
•>  Ex  relatione  Lord  Eldon,  in  3  Hans.  Pari.  Deb.  1740,  3d  ser. 
"  Reg.  V.  Courtnage,  and  others,  infra. 
<i  Rex  V.  Palayo,  Liverpool  Mids.  Quarter  Sess.  1836. 


122  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

another  impression  upon  a  packet  of  papers  produced 
in  evidence  by  the  prisoner,  and  both  impressions  were 
taken  from  a  seal  in  the  possession  of  a  member  of  his 
family.'"' 

The  impressions  of  shoes,  or  of  shoe-nails,  or  of  other 
articles  of  apparel,  or  of  patches,  abrasions,  or  other  pe- 
culiarities therein,  discovered  in  the  soil  or  clay,  .or  snow, 
at  or  near  the  scene  of  crime,  recently  after  its  commis- 
sion, frequently  lead  to  the  identification  and  conviction 
of  the  guilty  parties.''  The  presumption  founded  on  these 
circumstances  has  been  appealed  to  by  mankind  in  all 
ages,  and  in  inquiries  of  every  kind,  and  is  so  obviously 
the  dictate  of  reason,  if  not  of  instinct,  that  it  would  be 
superfluous  to  dwell  upon  its  importance.  The  following 
remarkable  cases  illustrate  the  pertinency  and  weight  of 
such  mechanical  facts,  especially  when  connected  with 
other  concurring  circumstances  leading  to  the  same  re- 
sult : 

A  farm  laborer  was  tried  for  the  murder  of  a  young 
woman,  a  domestic  servant  living  in  the  same  service. 
A  little  before  seven  in  the  evening  she  went  on  an  er- 
rand to  take  some  barm  to  a  neighboring  house,  about 
200  yards  distant,  but  it  not  being  wanted,  she  did  not 
leave  it,  and  set  out  about  seven  o'clock  on  her  way  back. 
Being  about  to  leave  her  situation  that  evening,  she  had 
requested  the  prisoner  to  carry  her  box  to  the  gardener's 
house,  about  a  quarter  of  a  mile  distant.  Soon  after  she 
set  out  on  her  errand,  the  prisoner  followed  her,  carry- 
ing her  box,  but  did  not  reach  the  gardener's  cottage 
until  after  eight.     On  the  following  morning  she  was 

*  Rex  V.  Humphreys,  infra. 

^  Menochius,  «/  supra,  lib.  v.  pracs.  31 ;    Mascardus,  nt  supra,  Concl.  Dcccxx.  pi. 
1 1 ;  Traite  de  la  Preuve,  par  Mittermaier,  ut  supra,  c.  57. 


IDENTIFICATION    OF    PERSON.  123 

found,  lying  on  her  back,  drowned  in  a  shallow  pit  near 
a  footpath  leading  from  her  master's  house  to  the  gar- 
dener's cottage.  There  were  marks  of  violence  on  her 
person,  and  one  of  her  shoes  and  the  jug  in  which  she 
had  carried  the  barm  were  found  near  the  pit.  Barm 
was  also  found  spilt  near  the  spot,  and  there  were  marks 
of  much  trampling ;  and  chaff  and  grains  of  wheat  w^ere 
scattered  about,  which  were  material  facts,  the  prisoner 
having  been  engaged  the  day  before  in  threshing  wheat. 
Impressions  were  found  in  the  soil,  which  was  stiff  and 
retentive,  of  the  knee  of  a  man  who  had  w^orn  breeches 
made  of  strijDcd  corduroy,  and  patched  with  the  same 
material,  but  the  patch  was  not  set  on  straight,  the  ribs 
of  the  patch  meeting  the  hollow's  of  the  garment  into 
which  it  had  been  inserted;  which  circumstance  exactly 
corresponded  with  the  prisoner's  dress.  The  prisoner 
denied  that  he  had  seen  the  deceased  after  she  left  the 
house  on  her  errand,  and  stated  that  he  had  been,  in  the 
interval  before  his  arrival  at  the  gardener's  house,  in  com- 
pany wdth  an  acquaintance  whom  he  had  met  with  on  the 
road ;  but  it  was  proved  that  the  person  referred  to  at 
the  time  in  question  was  at  work  thirty  miles  off.  He 
was  convicted  and  executed.''  * 

A  man  was  tried  at  Stafford  Summer  Assizes,  1844, 
for  the  murder  of  an  elderly  w^oman,  the  housekeeper  of 
an  old  gentleman  at  Wednesbury,  who,  with  a  man-ser- 
vant, were  the  only  other  inmates.  Her  master  went 
from  home  on  a  Saturday  morning,  about  half-past  nine 
o'clock,  as  he  was  accustomed  to  do  on  that  day  of  the 
week,  leaving  the  deceased  in  the  house  alone.  Upon 
his  return,  a  quarter  before  two,  he  found  her  dead  body 
in  the  brew-house,  her  throat  having  been  cut,  and  the 

*  Rex  V.  Brindley,  Warwick  Spring  Ass.  1816. 


124  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

house  robbed.  The  murder  had  probtably  been  committed 
about  a  quarter-past  ten  o'clock,  as  the  butcher  called  at 
that  time  and  was  unable  to  obtain  admittance,  and  about 
the  same  time  a  scream  was  heard.  Traces  were  found 
of  a  man's  right  and  left  footsteps  leading  from  a  stable 
in  a  small  plantation  near  the  front  of  the  house,  from 
which  any  person  leaving  the  house  by  the  front  door 
could  be  seen ;  and  similar  footsteps  were  found  at  the 
back  of  the  house,  leading  from  thence  across  a  ploughed 
field  for  a  considerable  distance,  in  a  sequestered  direction, 
until  they  reached  a  canal  bank,  where  they  were  lost  on 
the  hard  ground.  From  the  distance  between  the  steps 
at  the  back  of  the  house  and  in  the  ploughed  field,  the 
person  whose  footsteps  they  were  must  have  been  run- 
ning ;  the  impressions  were  those  of  right  and  left  boots, 
and  were  very  distinct,  there  having  been  snow  and  rain, 
and  the  ground  being  very  moist.  The  right  footprints 
had  the  mark  of  a  tip  round  the  heel ;  and  the  left  foot- 
prints had  the  impression  of  a  patch  fastened  to  the  sole 
with  nails  different  in  size  from  those  on  the  sole  itself; 
and  altogether  there  were  four  different  sorts  of  nails  on 
the  patch  and  soles,  and  in  some  places  the  nails  were  miss- 
ing. Suspicion  fell  upon  the  prisoner,  who  had  formerly 
lived  as  fellow-servant  with  the  deceased,  and  who  had 
been  seen  by  several  persons  in  the  vicinity  of  the  house 
a  little  before  ten  o'clock.  Upon  his  apprehension  on 
the  following  morning,  his  boots,  trousers,  shirt,  and 
other  garments  were  found  to  be  stained  with  blood, 
and  the  trousers  had  been  rubbed  or  scraped,  as  if  to  ob- 
literate stains.  The  prisoner  wore  right  and  left  boots, 
which  were  carefully  compared  with  the  footprints  by 
making  impressions  of  the  soles  in  the  soil  about  six 
inches  from  the  original  footmarks ;  which  exactly  cor- 


IDENTIFICATION    OF    PERSON.  125 

responded  as  to  the  patch,  the  tip,  and  the  number,  shape, 
sizes,  and  arrangement  of  the  nails.  The  boots  were 
then  placed  lightly  upon  the  original  impressions,  and 
here  again  the  correspondence  was  exact.  There  could 
therefore  be  no  doubt  that  the  impressions  of  all  these 
footsteps  had  been  made  by  the  prisoner's  boots.  He 
had  been  seen  about  a  quarter  before  eleven  on  the 
morning  of  the  murder,  with  something  bulky  under  his 
coat,  near  the  place  where  the  footsteps  were  lost  on  the 
hard  ground,  and  proceeding  thence  towards  the  town 
of  Wednesbury.  At  eleven  o'clock  he  called  at  the 
''  Pack  Horse  "  in  that  place,  not  far  from  the  house, 
where  he  took  something  to  drink  and  immediately  left, 
and  at  a  little  after  twelve  he  called  at  another  public- 
house,  which  was  also  near  the  scene  of  the  murder, 
where  he  staid  some  time  smoking  and  drinking.  In 
the  interval  between  the  times  when  the  prisoner  had 
called  at  these  public-houses,  he  was  seen  at  some  dis- 
tance from  them,  near  an  old  whimsey;  and  he  was 
subsequently  seen  returning  in  the  opposite  direction 
towards  Wednesbury.  Five  days  afterwards,  upon  fur- 
ther search,  the  same  footprints  were  discovered  on  a 
footpath  leading  in  a  direction  from  the  "  Pack  Horse  " 
towards  the  whimsey,  where  two  bricks  appeared  to 
have  been  placed  to  stand  upon,  close  to  which  was  found 
an  impression  of  a  right  foot  corresponding  with  the  im- 
pressions which  had  been  before  discovered  ;  and  in  the 
flue  was  concealed  a  handkerchief  in  which  were  tied  up 
a  pair  of  trousers  and  waistcoat,  part  of  the  property 
stolen  from  the  house.  The  prisoner  must  have  availed 
himself  of  the  interval  between  the  times  when  he  was 
seen  at  the  two  public-houses,  to  secrete  the  stolen  gar- 
ments in  the  whimsey,  and  thus  to  divest  himself  of  the 


126  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

bulky  articles  which  had  been  observed  under  his  coat 
on  his  arrival  at  the  "  Pack  Horse."  The  jury,  after 
deliberating  several  hours,  returned  a  verdict  of  guilty, 
and  he  was  executed  pursuant  to  his  sentence,  having 
previously  made  a  confession  of  his  guilt.'' 

In  an  American  case,  a  prisoner  charged  with  arson 
had  turned  his  horse's  shoes  round  after  arriving  at  the 
house,  so  as  to  create  the  appearance  of  two  persons 
having  proceeded  to  and  from  it ;  but  the  artifice  was 
the  means  of  detection,  since  the  removal  of  the  shoes 
was  indicated  by  the  recent  marks  of  nails  on  the  horse's 
foot,  and  afforded  one  of  the  most  emphatic  of  the  indi- 
catioiis  by  which  the  prisoner's  guilt  was  established.^' 

To  guard  against  error,  it  is  manifest  that  the  recency 
of  the  discovery  and  comparison  of  the  impressions,  rel- 
atively to  the  time  of  the  occurrence  of  the  corpus  delictu 
and  before  other  persons  may  have  resorted  to  the  spot, 
is  of  the  highest  importance.  So,  the  accuracy  of  the 
comparison  is  obviously  all-important,  and  therefore,  as 
a  further  means  of  guarding  against  mistake,  it  must  be 
show^n  that  the  shoes  were  compared  with  the  footmarks 
before  they  were  put  on  them ; "  and  where  the  compar- 
ison had  not  been  previously  made,  Mr.  Justice  Park 
desired  the  jury  to  reject  the  whole  inquiry  relating  to 
the  identification  by  shoemarks.'^  Nor  must  it  be  over- 
looked, that,  even  where  the  identity  of  footmarks  has 
been  established  beyond  all  doubt,  they  may  have  been 
fabricated  with  the  intention  of  diverting  suspicion  from 

*  Reg.  V.  Beards,  coram  Mr.  Serjeant  Atcherley ;  and  see  other  cases  of  this  kind, 
Rex  V.  Richardson,  Rex  v.  Smith  and  others,  infra  ;  Rex  v.  Spiggott  and  others,  \ 
Cel.  Tr.  446. 

t"  Spooner's  case,  2  Chandler's  American  Grim.  Tr. 

<=  Rex  V.  Heaton,  1  Levvin's  C.  C.  116. 

^  Rex  V.  Shaw,  ih. 


IDENTIFICATION   OF   ARTICLES   OF   PROPERTY.  127 

the  real  ofTender,  and  fixing  it  upon  an  innocent  party; " 
and  that  in  other  respects  this  kind  of  evidence  may 
lead  to  erroneous  interpretation  and  inference.^ 

The  identification  of  human  remains  is  attended  with 
peculiar  difficulties  consequent  upon  the  changes  pro- 
duced by  death,  which  will  be  considered  in  a  subse- 
quent part  of  this  essay. 

Section  2. 
identification  of  articles  of  property. 

The  identification  of  articles  of  property,  like  that  of 
the  human  person,  is  capable  of  being  established,  not 
only  by  direct  evidence,  but  by  means  of  numberless 
circumstances  which  it  is  not  possible  to  enumerate. 
Most  of  the  cases  of  identification  which  have  been  enu- 
merated in  the  preceding  section  are  in  fact  cases  of 
identification  of  articles  of  property,  applied  inferentially 
to  the  establishment  of  personal  identity,  and  sufficiently 
illustrate  the  difficulties  which  attend  investigations  of 
this  kind.  The  following  cases,  as  well  as  others  which 
have  been  already  mentioned,  show  how  liable  even 
well-intentioned  witnesses,  who  speak  to  facts  of  this 
particular  kind,  are  to  error  and  misconception. 

At  the  Spring  Assizes,  at  Bury  St.  Edmunds,  1830. 
a  respectable  farmer,  occupying  twelve  hundred  acres  of 
land,  was  tried  for  a  burglary  and  stealing  a  variety  of 
articles.  Amongst  the  articles  alleged  to  have  been  stolen 
were  a  pair  of  sheets  and  a  cask,  which  were  found  in 
the  possession  of  the  prisoner,  and  were  positively  sworn 

*  See  the  remarkable  case  of  FraD9ois  Mayenc,  Gabriel,  ut  mipra,  40?i. 
•>  Rex  V.  Thornton;  Rex  c.  Isaac  Looker,  infra. 


128  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

to  by  the  witnesses  for  the  prosecution  to  be  those  which 
had  been  stolen.  The  sheets  were  identified  by  a  par- 
ticular stain,  and  the  cask  by  the  mark  "  P.  C.  84,"  en- 
closed in  a  circle  at  one  end  of  it.  On  the  other  hand, 
a  number  of  witnesses  swore  to  the  sheets  being  the 
prisoner's,  by  the  same  mark  by  which  they  had  been 
identified  by  the  witnesses  on  the  other  side  as  being 
the  prosecutor's.  With  respect  to  the  cask,  it  was  proved 
by  numerous  witnesses,  whose  respectability  left  no 
doubt  of  the  truth  of  their  testimony,  that  the  prisoner 
was  in  the  habit  of  using  cranberries  in  his  establishment, 
and  that  they  came  in  casks,  of  which  the  cask  in  ques- 
tion was  one.  In  addition  to  this,  it  was  proved  that 
the  prisoner  purchased  his  cranberries  from  a  tradesman 
in  Norwich,  whose  casks  were  all  marked  "P.  C.  84," 
enclosed  in  a  circle,  precisely  as  the  prisoner's  were,  the 
letters  P.  C.  being  the  initials  of  his  name,  and  that  the 
cask  in  question  was  one  of  them.  In  summing  up,  the 
learned  judge  remarked  that  this  was  one  of  the  most 
extraordinary  cases  ever  tried,  and  that  it  certainly  ap- 
peared that  the  witnesses  for  the  prosecution  were  mis- 
taken.    The  prisoner  was  acquitted. "" 

A  man  was  tried  in  Scotland  for  housebreaking  and 
theft.  The  girl  whose  chest  had  been  broken  open,  and 
whose  clothes  had  been  carried  off,  swore  to  the  only 
article  found  in  the  prisoner's  possession,  and  produced, 
namely,  a  white  gown,  as  being  her  j^roperty.  She  had 
previously  described  the  color,  quality,  and  fishion  of 
the  gown,  and  they  all  seemed  to  correspond  with  the 
article  produced.  The  housbreaking  being  clearly  proved, 
and  the  goods,  as  it  was  thought,  clearly  traced,  the  case 
was  about  to  be  closed  by  the  prosecutor,  when  it  oc- 

■'  A.  R.  1820,  50 ;  the  report  was  supplied  by  a  barrister  of  euiiuence. 


IDENTIFICATION    OF    ARTICLES    OF    PROPERTY.  129 

curred  to  one  of  the  jury  to  cause  the  girl  to  put  on  the 
gown.  To  the  surprise  of  every  one  present,  it  turned 
out  that  the  gown  which  the  girl  had  sworn  to  as  belong- 
ing to  her,  which  corresponded  with  her  description, 
;ind  which  she  said  she  had  worn  only  a  short  time  be- 
fore, would  not  fit  her  person.  She  then  examined  it 
more  minutely,  and  at  length  said  it  was  not  her  gown, 
though  almost  in  every  respect  resembling  it.  The 
prisoner  was,  of  course,  acquitted ;  and  it  turned  out 
that  the  gown  produced  belonged  to  another  woman, 
whose  house  had  been  broken  into  about  the  same  period, 
by  the  same  person,  but  of  which  no  evidence  had  at 
that  time  been  produced.* 

On  the  trial  of  a  young  woman  for  child-murder,  it 
appeared  that  the  body  of  a  newly -born  female  child  was 
found  in  a  pond  about  a  hundred  yards  from  her  master's 
house,  dressed  in  a  shirt  and  cap,  and  a  female  witness 
deposed  that  the  stay  or  tie  which  was  pinned  to  the 
cap,  and  made  of  spotted  linen,  was  made  of  the  same 
stuff  as  a  cap  found  in  the  prisoner's  box ;  but  a  mercer 
declared  that  the  two  pieces  were  not  only  unlike  in 
pattern,  but  different  in  quality.^ 

A  youth  was  convicted  of  stealing  a  pocket-book  con- 
taining five  one-pound  notes,  under  very  extraordinary 
circumstances.  The  prosecutrix  left  home  to  go  to  mar- 
ket in  a  neighboring  town,  and  having  stooped  down  to 
look  at  some  vegetables  exposed  to  sale,  she  felt  a  hand 
resting  upon  her  shoulder,  which  on  rising  up  she  found 
to  be  the  prisoner's.  Having  afterwards  purchased  some 
articles  at  a  grocer's  shop,  on  searching  for  her  pocket- 

»  Rex  V.  Webster,  Burnett's  C.  L.  of  Scot.  558  ;  19  St.  Tr.  494. 

•>  Rex  V.  Bate,  Warwick  Autumn  Ass.  1809,  before  Mr.  Justice  Le  Blanc. 

9 


130  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

book  in  order  to  pay  for  them,  she  found  it  gone.  Her 
suspicion  fell  upon  the  prisoner,  who  was  apprehended, 
and  upon  his  person  was  found  a  black  pocket-book, 
which  she  identified  by  a  particular  mark,  as  that  which 
she  had  lost,  but  it  contained  no  money.  Several  wit- 
nesses deposed  that  the  prisoner  had  long  possessed  the 
identical  pocket-book,  speaking  also  to  particular  marks 
by  which  they  were  enabled  to  identify  it;  but  some 
discrepancies  in  their  evidence  having  led  to  the  suspi- 
cion that  the  defence  was  a  fabricated  one,  the  jury 
returned  a  verdict  of  guilty,  and  the  prisoner  was  sen- 
tenced to  be  transported.  During  the  continuance  of 
the  assizes,  two  men  who  were  mowing  a  field  of  oats 
through  which  the  path  lay  by  which  the  prosecutrix 
had  gone  to  market,  found  in  the  oats,  close  to  the  path, 
a  black  pocket-book  containing  five  one-pound  notes. 
The  men  took  the  notes  and  pocket-book  to  the  prose- 
'Cutrix,  who  immediately  recognized  them  ;  and  the  com- 
mitting magistrate  dispatched  a  messenger  with  the 
articles  found,  and  her  affidavit  of  identity,  to  the  judge 
at  the  assize  town,  who  directed  the  prisoner  to  be  placed 
at  the  bar,  publicly  stated  the  circumstances  so  singu- 
larly brought  to  light,  and  directed  his  immediate  dis- 
charge. The  prosecutrix  must  have  dropped  her  pocket- 
book,  or  drawn  it  from  her  pocket  with  her  handker- 
chief, and  had  clearly  been  mistaken  as  to  the  identity 
of  the  pocket-book  produced  upon  the  trial.''' 

It  is  not,  however,  necessary  that  the  identity  of  stolen 
property  should  be  invariably  established  by  positive 
evidence.  In  many  such  cases  identification  is  impracti- 
cable ;  and  yet  the  circumstances  may  render  it  impos- 

*  Rex  V.  Gould,  coram  Mr.  Baron  Garrow,  Stafford  Summer  Ass.  1820. 


IDENTIFICATION   OF    ARTICLES    OF    PROPERTY.  131 

sible  to  doubt  the  identity  of  the  property,  or  to  account 
for  the  possession  of  it  by  the  party  accused  upon  any 
reasonable  hypothesis  consistent  with  his  innocence  ;  as 
in  the  case  of  laborers  employed  in  docks,  warehouses, 
or  other  such  establishments,  found  in  possession  of  tea, 
sugar,  tobacco,  pepper,  or  other  like  articles,  concealed 
about  the  person,  in  which  cases  the  similarity  or  gen- 
eral resemblance  of  the  article  stolen  is  sufficient."  Two 
men  were  convicted  of  stealing  a  quantity  of  soap  from  a 
soap  manufactory  near  Glasgow,  which  was  broken  into 
on  a  Saturday  night  by  boring  a  hole  in  the  wall,  and 
120  lbs.  of  yellow  soap  abstracted.  On  the  same  night, 
at  eleven  o'clock,  the  prisoners  were  met  by  a  watch- 
man near  the  centre  of  the  city,  one  of  them  having 
40  lbs.  of  3^ellow  soap  on  his  back,  and  the  other  with 
his  clothes  greased  all  over  with  the  same  substance. 
The  prisoners,  on  seeing  the  watchman,  attempted  to 
escape,  but  were  seized.  The  owner  declared  that  the 
soap  was  exactly  of  the  same  kind,  size,  and  shape,  with 
that  abstracted  from  his  manufactory ;  but,  as  it  had 
no  private  mark,  he  could  not  identify  it  more  distinctly. 
One  of  the  prisoners  had  formerly  been  a  servant  about 
the  premises,  and  both  of  them  alleged  that  they  got  the 
soap  in  a  public  house,  from  a  man  whom  they  did  not 
know.^  A  servant  man  was  seen  to  come  from  a  part 
of  his  master's  premises  where  he  had  no  right  to  go, 
and  where  a  large  quantity  of  pepper  was  stored  in  bulk, 
and  on  being  stopped,  a  quantity  of  pepper  of  the  same 
kind  was  found  on  his  person ;  it  was  held  by  the  Crim- 


a2  East's  P.  C.  637;  2  Russell  on  Crimes  (by  Greaves),  107;  Rex  v.  ■White.  H. 
&  R.  SnS :  Rex  v.  Dredge,  1  Cox's  C.  C.  235. 

•>  Rex  V.  M'Kcchnie  and  Tolmic,  Glasgow  S))ring  Circuit,  1S2S,  Alison's  Print-., 
tit  mpva,  322. 


132  WILLS    ON   CIRCUMSTANTIAL   EVIDENCE. 

inal  Court  of  Appeal  that  though  the  pepper  could  not 
be  positively  identified,  he  had  been  properly  convicted 
of  larceny.'' 

Section  3. 

PROOF    OF    handwriting. 

The  usual  mode  of  proving  handwriting  is  by  the 
direct  testimony  of  some  witness  who  has  either  seen 
the  party  write,  or  acquired  a  knowledge  of  his  hand- 
writing from  having  corresponded  with  him,  and  had 
transactions  in  business  with  him,  on  the  faith  that  let- 
ters purporting  to  have  been  written  or  signed  by  him 
were  genuine.  In  either  case  the  witness  is  supposed 
to  have  received  into  his  mind  an  exemplar  of  the  gen- 
eral character  of  the  handwriting  of  the  party,  impressed 
on  it  as  the  involuntary  and  unconscious  result  of  con- 
stitution, habit,  or  other  permanent  cause,  and  which  is 
therefore  itself  permanent ;  and  he  is  called  on  to  speak 
to  the  writing  in  question  by  reference  to  the  standard 
so  formed  in  his  mind.'' 

'  It  is  necessary  to  recall  these  leading  principles  of 
proof  of  handwriting  "by  direct,  as  introductory  to  the 
consideration  of  the  various  methods  of  proof  by  indi- 
rect evidence. 

Evidence  of  similitude  of  handwriting  by  the  compari- 
son of  controverted  writing  with  the  admitted  or  proved 
writing  of  the  party,  made  by  a  witness  who  has  never 
seen  the  party  waite,  nor  has  any  knowdedge  of  his  hand- 
writing, and  who  arrives  at  the  inference  that  it  is  his 

a  Rex  V.  Burton,  23  L.  J.  M.  C.  52;  6  Cox's  C.  C.  293  ;  and  see  Reg.  v.  Hooper, 
1  F.  <fe  F.  85. 

^  Per  Coleridge,  J.,  in  Doe  d.  Mudd  v.  Suckermore,  5  A.  <&  E.  705,  and  2  N.  & 
P.  16. 


PROOF    OF    HANDWRITING.  133 

handwriting  because  it  is  like  some  other  which  is  so," 
is  a  mode  of  proof  which  has  been  much  lauded  by  writ- 
ers on  the  civil  law,  and  is  commonly  admitted  in  those 
countries  whose  jurisprudence  is  founded  on  that  sys- 
tem ;  the  comparison  being  made  by  professional  experU 
appointed  by  the  court  or  agreed  upon  by  the  parties, 
under  many  restrictions  for  securing  the  genuineness  of 
the  writings  which  are  to  form  the  standard  of  compar- 
ison. Comparison  of  handwriting  appears  also  to  be  a 
recognized  mode  of  proof  in  some  of  the  American  States, 
whose  judicial  systems  are  generally  founded  on  oui" 
own.^  Such  evidence  is  in  general  inadmissible  in  this 
country,  though  the  leaning  of  text-writers  of  authority 
appears  to  have  been  rather  in  favor  of  the  principle  of 
its  admissibility ;  the  only  admitted  exceptions  are, 
where  the  writing  acknowledged  to  be  genuine  is  already 
in  evidence  in  the  cause,  or  the  disputed  writing  is  an 
ancient  writing.''  In  these  excepted  cases,' the  evidence 
is  admitted,  it  is  said,  of  necessity,  in  the  former  case 
because  it  is  not  possible  to  prevent  the  jury  from  mak- 
ing such  comparison,  and  therefore  it  is  best,  as  was  re- 
marked by  Lord  Denman,*^  for  the  court  to  enter  with 
the  jury  into  that  inquiry,  and  do  the  best  it  can  under 
circumstances  which  cannot  be  helped ;  in  the  latter, 
because  from  the  lapse  of  time  no  living  person  can  have 


a  Benth.  Jud.  Ev.  b.  iii,  e.  7 ;  Rex  v.  De  la  Motte,  21  St.  Tr.  810. 

^  See  in  Bemis's  Rep.  of  the  Tr.  of  Professor  Webster,  some  curious  evidence  of 
this  kind. 

=  Allport  I'.  Meek,  4  C.  &  P.  267  ;  Bromage  v.  Rice,  7  ih.  648  ;  Waddington  i-. 
Cousins,  ih.  595;  Griffith  v.  Williams,  1  C.  &  J.  47;  Doe  d.  Perry  v.  Newton,  1  N. 
&  P.  1;  and  5  A.  &  E.  514;  Solita  v.  Yarrow,  1  M.  &  R.  133;  Griffits  v.  Ivery,  11 
A.  &  E.  222. 

^  In  Doe  d.  Perry  v.  Newton,  ut  siqyra.  Fitzwalter  Peerage,  10  C.  &  F.  193;  Doe 
d.  Jenkins  v.  Davies,  10  Q.  B.  314;  16  L.  J.  Q.  B.  228;  and  see  Reg.  v.  Taylor,  6 
Cox's  C.  C.  58. 


134  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

any  knowledge  of  the  handwriting  from  his  own  obser- 
vation,'* and  because  in  ancient  documents  it  often  be- 
comes a  pure  question  of  skill,  the  character  of  the 
handwriting  varying  with  the  age,  and  the  discrimination 
of  it  being  materially  assisted  by  antiquarian  researches.'^ 
The  evidence  of  persons  accustomed  to  the  critical 
examination  of  handwriting,  as  engravers  and  inspectors 
of  franks,  who,  without  any  previous  knowledge  of  a 
person's  handwriting,  profess  to  be  able  to  determine 
by  comparison  of  the  disputed  with  the  genuine  writing, 
whether  a  signature  be  genuine  or  not,  and  also  from 
the  general  character  and  appearance  of  wTiting,  whether 
it  is  written  in  a  natural  or  feigned  hand,  appears  to 
have  been  formerly  considered  another  exception  to  the 
rule ;  "^  but  such  evidence  is  now  considered  to  be  of  so 
little  weight,  and  attempts  to  introduce  it  are  so  much 
discountenanced,  that,  in  the  language  of  Lord  Denman,*^ 
this  chapter  may  be  considered  as  expunged  from  the 
book  of  evidence.  It  has  been  justly  remarked  that  be- 
sides being  subject  to  the  same  defects  as  the  opinions 
of  persons  speaking  from  previous  familiar  knowledge, 
it  arises  from  a  forced  acquaintance  with  the  handwriting 
of  a  few,  often  from  selected  specimens,  while  the  ex- 
amination is  made  solely  with  a  view  to  giving  evidence 
in  favor  of  the  party  to  whom  the  witness  looks  for  re- 
muneration ; "  so  that,  in  the  words  of  an  eminent 
Scotch  judge,  "  in  almost  all  countries,  the  evidence  of 

*  Per  Patteson,  J.,  in  Doe  d.  Mudd  i'.  Suckerinore,  ut  supra. 
•>  Per  Coleridge,  J.,  ih. 

c  Goodtitle  v.  Revett,  4  T.  R.  497;  Rex  v.  Cator,  4  Esp.  117;  Rex  v.  Johnson,  29 
St.  Tr.  81. 

"1  Doe  d.  Mudd  r.  Suckermore,  m<  su])ra  ;  and  see  Gurney  v.  Langlands,  5  B.  & 
Aid.  330  ;  Constable  v.  Steibel,  1  Hagg.  56  ;  Young  v.  Brown,  ih.  569 ;  Fitzwalter 
Peerage,  10  C.  &  F.  193;  Tracy  Peerage,  ih.  154. 

*  Dickson's  L.  of  Ev.  ut  sttju-a. 


PROOF   OF    HANDWRITING.  135 

persons  of  skill  on  this  subject  is  almost  totally  aban- 
doned."'' 

An  attempt  has  lately  been  made  to  introduce  a  new 
mode  of  proof,  by  satisfying  the  witness  by  some  infor- 
mation or  evidence,  that  certain  papers  are  in  the  hand- 
writing of  the  party,  and  then  desiring  him  to  study 
those  papers,  so  as  to  acquire  a  knowledge  of  the  hand- 
writing, and  fix  an  exemplar  in  his  mind,  and  afterwards 
putting  into  his  hand  the  writing  in  question  and  asking 
his  belief  respecting  it ;  or  by  merely  putting  certain 
])apers  into  the  witness's  hand  without  telling  him  who 
wrote  them,  and  desiring  him  to  study  them,  and  acquire 
a  knowledge  of  the  handwriting,  and  afterwards  showing 
him  the  writing  in  question  and  asking  his  belief,  whether 
they  are  written  by  the  same  person,  and  calling  evi- 
dence to  prove  to  the  jury  that  the  former  are  the  hand- 
writing of  the  party.''  The  question  in  the  cause  was 
the  due  execution  of  a  will.  On  the  first  day  of  trial 
the  defendant  called  an  attesting  witness,  who  swore 
that  the  attestation  was  his.  On  his  cross-examination, 
two  signatures  to  depositions  respecting  the  same  will 
in  an  ecclesiastical  court,  and  several  other  signatures, 
were  shown  to  him  (none  of  them  being  in  evidence  for 
any  other  purpose  of  the  cause),  and  he  stated  that  he 
belie veid  them  to  be  his.  On  the  following  day  the  plain- 
tifi^  tendered  a  witness  to  prove  the  attestation  not  to 
be  genuine.  The  witness  was  a  bank  inspector,  who  had 
no  knowledge  of  the  handwriting  of  the  supposed  attest- 
ing witness,  except  from  having  previous  to  the  trial, 
and  again  between  the  two  days,  examined  the  signatures 
admitted  by  the  attesting  witness,  which  admission  he 

^  Per  Lord  Mackenzie,  quoted  in  Dickson's  L.  of  Ev. 

•>  Per  Mr.  Justice  Patteson,  in  Doe  dem.  Mudd  v.  Suckermore,  xit  supra. 


136  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

had  heard  made  in  court.  Mr.  Justice  Vaughan  rejected 
the  evidence ;  and  upon  a  motion  for  a  new  trial,  on  the 
ground  of  its  improper  rejection,  the  judges  of  the  Court 
of  Queen's  Bench  were  equally  divided  in  opinion.'*  By 
a  recent  statute  ^  comparison  of  a  disputed  writing  with 
any  writing  proved  to  the  satisfaction  of  the  judge  to  be 
genuine,  shall  in  civil  cases  be  permitted  to  be  made  by 
witnesses,  and  such  writings,  and  the  evidence  of  wit- 
nesses respecting  the  same,  may  be  submitted  to  the 
court  and  jury  as  evidence  of  the  genuineness  or  other- 
wise of  the  writing  in  dispute ;  but  it  seems  to  be  an 
anomaly  that  a  different  rule  should  govern  the  admis- 
sibility of  evidence  in  civil  and  criminal  cases. 

Evidence  to  handwriting  is  subject  to  many  sources 
of  fallacy  and  error,  among  which  may  be  enumerated 
tuition  by  the  same  preceptor,  employment  with  other 
persons  in  the  same  place  of  business,  as  well  as  designed 
imitation  or  disguise,  all  of  which  are  frequently  causes 
of  great  similarity  in  writing.  Men  in  certain  businesses 
or  professions  sometimes  adopt  peculiarities  of  character, 
though  less  frequently  than  formerly ;  and  there  are 
characteristic  peculiarities  indicative  of  age,  infirmity, 
and  sex.*" 

Handwriting  is  sometimes  most  successfully  imitated. 
On  a  trial  for  forgery  of  bank-notes,  a  banker's  clerk 
whose  name  was  on  one  of  the  notes  swore  distinctly 
that  it  was  his  handwriting,  while  he  spoke  hesitatingly 
with  respect  to  his  genuine  subscription.''  Lord  Eldon 
mentioned  a  very  remarkable  instance  of  the  uncertainty 

a  Ibid.;  and  see  Hughes  v.  Rogers,  8  M.  &  W.  123 ;  Young  v.  Horner,  2  M.  &  K. 
573,  and  1  C.  &  K.  51, 
b  17  &  18  Vict.  c.  125,  s.  27. 
"  See  Rex  p.  Johnson,  ul  supra. 
"»  Rex  V.  Carsewell,  Burnett's  C.  L.  of  Scot.  502. 


PROOF   OF    HANDWRITING.  187 

of  this  kind  of  evidence.  A  deed  was  produced  at  a  trial 
on  which  much  doubt  w^as  thrown  as  a  discreditable  trans- 
action. The  solicitor  was  a  very  respectable  man,  and 
was  confident  in  the  character  of  his  attesting  witnesses. 
One  of  them  purported  to  be  Lord  Eldon  himself,  and 
the  solicitor,  wdio  had  referred  to  his  signature  to  plead- 
ings, had  no  doubt  of  its  authenticity,  yet  Lord  Eldon 
declared  that  he  had  never  attested  a  deed  in  his  life." 

In  a  case  in  Doctors'  Commons  the  learned  judge  re- 
pudiated the  common  objection  of  painting  or  touching, 
as  a  reason  for  inferring  fraud,  saying  that  there  could 
scarcely  be  a  less  certain  criterion,  and  peremptorily 
declined  the  use  of  a  glass  of  high  powers,  said  to  have 
been  used  by  the  professional  witnesses,  observing,  in 
substance,  that  glasses  of  high  powers,  however  fitly  ap- 
plied to  the  inspection  of  natural  subjects,  rather  tend 
to  distort  and  misrepresent  than  to  place  such  objects  in 
their  true  light ;  especially  w^hen  used  (their  ordinary  ap- 
plication in  the  hands  of  prejudiced  persons)  to  confirm 
some  theory  or  preconceived  opinion.''  But  it  is  the  daily 
practice  of  courts  of  common  law  to  admit  the  artifi- 
cial aid  of  glasses  and  lamps ;  and  on  an  indictment  for 
forgery,  the  question  being  whether  a  paper  had  origin- 
ally contained  certain  pencil-marks  which  were  alleged  to 
have  been  rubbed  out,  and  ink-writing  written  in  their 
stead,  the  opinion  of  an  engraver,  who  was  in  the  habit 
of  looking  at  minute  lines  on  paper,  and  had  examined 
the  document  with  a  mirror,  was  held  to  be  receivable, 
although  of  no  weight  unless  confirmed.'' 

The  following  extract  from  a  learned  judgment  of  Sir 
John  Nicholl   embodies  many  instructive  observations 

*  Eagleton  v.  Kingston,  8  Ves.  473.  ^  Robson  v.  Roeke,  2  Addams,  "if. 

<=  Reg.  V.  Williams,  8  C.  &  P.  434. 


138  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

upon  this  kind  of  evidence  :  "  This  court  has  often  had 
occasion  to  observe,  that  evidence  to  handwriting  is  at 
best,  in  its  own  nature,  very  inconclusive ;  affirmative, 
from  the  exactness  with  which  handwriting  may  be  imi- 
tated ;  and  negative,  from  the  dissimilarity  which  is  often 
discoverable  in  the  handwriting  of  the  same  person  under 
different  circumstances.  Without  knowing  very  pre- 
cisely the  state  and  condition  of  the  writer  at  the  time, 
and  exercising  a  very  discriminating  judgment  upon 
these,  persons  deposing,  especially,  to  a  mere  signature 
not  being  that. of  such  or  such  a  person,  from  its  dissim- 
ilarity, however  ascertained  or  supposed  to  be,  to  his 
usual  handwriting,  are  so  likely  to  err,  that  negative 
evidence  to  a  mere  subscription,  or  signature,  can  sel- 
dom, if  ever,  under  ordinary  circumstances,  avail  in  proof, 
against  the  final  authenticity  of  the  instrument  to  w-hich 
that  subscription,  or  signature,  is  attached.  But  such 
evidence  is  peculiarly  fallacious  where  the  dissimilarity 
relied  upon  is  not  that  of  general  character,  but  merely 
particular  letters ;  for  the  slightest  peculiarities  of  cir- 
cumstance or  position,  as,  for  instance,  the  writer  sitting 
up  or  reclining,  or  the  paper  being  placed  upon  a  harder 
or  softer  substance,  or  on  a  plane  more  or  less  inclined, 
nay,  the  materials,  as  pen,  ink,  etc.,  being  different  at 
different  times';  are  amply  sufficient  to  account  for  the 
same  letters  being  made  variously  at  the  different  times 
by  the  same  individual.  Independent,  however,  of  any- 
thing of  this  sort,  few  individuals,  it  is  apprehended, 
W'rite  so  uniformly  that  dissimilar  formations  of  particu- 
lar letters  are  grounds  for  concluding  them  not  to  have 
been  made  by  the  same  person."  ^ 

The  difficulty  of  proving  handwriting  is  greatly  in- 

"  Robson  V,  Rocke,  2  Addams,  79. 


PROOF    OF    HANDWRITING.  139 

creased  ■where  it  is  studiously  disguised  ;  but  such  is  the 
power  of  habit,  that  though  persons  may  succeed  to  a 
certain  extent  in  disguising  their  writing,  they  commonly 
fall  into  their  natural  manner  and  characteristic  pecu- 
liarities of  writing;*  such  peculiarities  being"  most  com- 
monly manifested  in  the  formation  of  particular  letters, 
or  in  the  mode  of  spelling  particular  words.'' 

A  tailor,  of  the  name  of  Alexander,  having  learned  that 
a  person  of  the  same  name  had  died,  leaving  considerable 
property  without  any  apparent  heirs  existing,  obtained 
access  to  a  garret  in  the  family  mansion,  and  it  was  said 
found  there  a  collection  of  old  letters  about  the  family. 
These  he  carried  off,  and  with  their  aid  fabricated  a  mass 
of  similar  productions,  which,  it  was  said,  clearly  proved 
his  connection  with  the  family  of  the  deceased,  and  the 
Lord  Ordinary  decided  the  cause  in  his  favor ;  the  case, 
however,  was  carried  to  the  Inner  House.  When.it  came 
into  court,  certain  circumstances  led  Lord  Meadowbank, 
then  a  young  man  at  the  bar,  to  doubt  the  authenticity 
of  the  documents.  One  circumstance  was,  that  there 
were  a  number  of  words  in  the  letters,  purporting  to  be 
from  different  individuals,  spelt,  or  rather  misspelt,  in  the 
same  way,  and  some  of  them  so  peculiar,  that  on  examin- 
ing them  minutely,  there  was  no  doubt  that  they  were  all 
written  by  the  same  hand.  The  case  attfacted  the  atten- 
tion of  the  Inner  House.  The  party  was  brought  to  the 
clerk's  table,  and  was  examined  in  the  presence  of  the 
court.  He  was  desired  to  write  to  dictation  of  the  Lord 
Justice  Clerk,  and  he  misspelt  all  the  words  that  were 
misspelt  in  the  letters  in  precisely  the  same  way ;  and 


»  Per  Macdonald,  C.  B.  in  Rex  v.  Bingham,  Horsham  Spring  Ass.  1811,  Short- 
hand Rep.  106. 

''  See  Re.x  v,  Johnson,  ut  supra. 


140  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

this  and  other  circumstances  proved  that  he  had  fabri- 
cated all  of  them  himself.  He  then  confessed  the  truth 
of  his  having  written  the  letters  on  old  paper,  which  he 
had  found  in  the  garret;  and  this  result  was  arrived  at 
in  the  teeth  of  the  testimony  of  half  a  dozen  engravers, 
all  saying  that  they  thought  the  letters  were  written  by 
different  hands." 

It  is  even  still  more  difficult  to  depose  with  confidence 
to  the  identity  of  a  disguised  writing,  if  the  disguise  is 
applied  to  printed  characters,  and  Mr.  Baron  Rolfe  spoke 
of  such  evidence  as  of  no  value. ^ 


Section  4. 

verification  of  dates  and  time. 

Amongst  the  numerous  physical  and  mechanical  cir- 
cumstances which  occasionally  lead  to  the  detection  of 
forgery  and  fraud,  a  discrepancy  between  the  date  of  writ- 
ing and  the  A?tno  Domini  water-mark  in  the  fabric  of  the 
paper  is  one  of  the  most  striking  ;'^  but  inasmuch  as  pros- 
pective issues  of  paper,  bearing  the  water-mark  of  a  suc- 
ceeding year,  are  occasionally  made,  this  circumstance  is 
not  always  a  safe  ground  of  presumption ;  ^  and  it  is  not 
uncommon  amoHg  manufacturers  both  to  post-date  and 
to  ante-date  their  paper-moulds.  A  witness  examined  in 
1834  stated  that  he  was  then  making  moulds  with  the 

*  Related  by  Lord  Meadowbank  in  Reg.  v.  Humphreys,  infra  ;  and  see  Short- 
hand Report  of  the  case  of  Smith  v.  Earl  Ferrers,  1846. 

''  Reg.  V.  Rush,  Norwich  Spring  Assizes,  1849 ;  Webster's  case,  Bemis's  Report, 
ut  supra. 
0  Crisp  V.  Walpole,  2  Hagg.  521. 

*  A  Commissioner  of  the  Insolvent  Debtor's  Court  sitting  at  Wakefield  in  ISSfi, 
discovered  that  the  paper  he  was  then  using,  which  had  been  issued  by  the  govern- 
ment stationer,  bore  the  water-mark  of  1837. 


VERIFICATION    OF    DATES    AND   TIMES.  141 

date  of  1828,  under  a  special  order."  Tn  an  old  case  a 
criminal  design  was  detected  by  the  circumstance  that 
a  letter,  purporting  to  come  from  Venice,  was  written 
upon  paper  made  in  England.'' 

The  critical  examination  of  the  internal  contents  of 
written  instruments,  perhaps  -of  all  others,  affords  the 
most  satisfactory  means  of  disproving  their  genuineness 
and  authenticity,  especially  if  they  profess  to  be  the  pro-- 
ductions  of  an  anterior  age.  It  is  scarcely  possible  that 
a  forger,  however  artful  in  the  execution  of  his  design, 
should  be  able  to  frame  a  spurious  composition  without 
betraying  its  fraudulent  origin  by  peculiarities  of  writing 
or  orthography  characteristic  of  a  different  age  or  period, 
or  by  the  employment  of  words  of  later  introduction,  or 
by  the  use  of  them  in  a  sense  or  meaning  which  they 
did  not  then  bear,  or  by  some  statement  or  allusion  not 
in  harmony  with  the  known  character,  opinions,  and 
feelings  of  the  pretended  writer,  or  with  events  or  cir- 
cumstances which  must  have  been  known  to  him,  or  by 
a  reference  to  facts  or  modes  of  thought  characteristic 
of  a  later  or  a  different  age  from  that  to  which  the 
writing  relates.  A  writer,  eminent  alike  for  his  critical 
sagacity  and  for  his  imaginative  genius,  declared  that  he 
had  met  in  his  researches  with  only  one  poem  which,  if 
it  had  been  produced  as  ancient,  could  not  have  been  de- 
tected on  internal  evidence.*'  Judicial  history  presents 
innumerable  examples  in  illustration  of  the  soundness 
of  these  principles  of  judgment,  of  which  the  following 
are  not  the  least  interesting. 

A  deed  was  offered  in  evidence,  bearing  date  the  13th 

*  Rodger  v.  Kay,  12   Cases  in   Court  of  Session,  317;    Miller  c.  Fraser,  4  ib.  55 ; 
4  Murray's  Cases  in  Jury  Court,  118. 

^  Best  on  Presumptions,  56;  referring  to  Moore,  817. 
■^  2  Lockhart's  Life  of  Scott,  c.  ix. 


142  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

of  November  in  the  second  and  third  years  of  the  reign 
of  Philip  and  Mary,  in  which  they  were  called  ^^king  and 
queen  of  Spain  and  both  Sicilies,  and  dukes  of  Burgundy, 
Milan,  and  Brabant,"  whereas  at  that  time  they  were 
formally  styled  '^'^ princes  of  Spain  and  Sicily,"  and  Bur- 
gundy was  never  put  before  Milan,  and  they  did  not  as- 
sume the  title  of  king  and  queen  of  Spain  and  the  two 
Sicilies  until  Trinity  Term  following.'* 

A  most  curious  and  instructive  case  of  this  kind  was 
that  of  Alexander  Humphreys,  before  the  High  Court  of 
Justiciary  at  Edinburgh,  April,  1839,  for  forging  and 
uttering  several  documents  in  support  of  a  claim  advanced 
by  him  to  the  earldom  of  Stirling  and  extensive  estates. 
One  of  those  documents  purported  to  be  an  excerpt  from 
a  charter  of  Novodamus  of  King  Charles  I,  bearing  date 
the  7th  of  December,  1639,  in  favor  of  William  the  first 
Earl  of  Stirling,  and  making  the  honors  and  estates  of 
that  nobleman,  which  under  previous  grants  were  in- 
heritable only  by  heirs  male,  descendable  in  default  of 
heirs  male  to  his  eldest  heirs  female,  without  division, 
of  the  last  of  such  heirs  male,  and  to  the  heirs  male  of 
the  body  of  such  heirs  female  respectively.  This  excerpt 
purported  in  the  testatum  clause  to  be  witnessed  by  Arch- 
bishop Spottiswood  "  our  chancellor,"  whereas  he  died 
on  the  26th  of  November,  1639,  and  it  w^as  proved  by 
the  register  of  the  Privy  Council  that  he  resigned  the 
office  of  chancellor,  and  that  the  Great  Seal  was  delivered 
to  the  custody  of  James,  Marquess  of  Hamilton,  on  the 
13th  of  November,  1638,  more  than  a  year  before  the 
date  of  the  pretended  charter,  and  that  there  was  an  in- 
terregnum in  the  office  of  chancellor  until  the  appoint- 
ment of  Lord  Loudon  on  the  30th  of  September,  1641. 

a  Mossom  r.  Ivy,  10  St.  Tr.  616;  and  vide  Coke's  First  Inst.  7  h. 


VERIFICATION    OF   DATES    AND    TIMES.  143 

A  genuine  charter,  dated  four  days  after  the  pretended 
charter,  was  witnessed  by  James,  Marquess  of  Hamilton. 
The  circumstance  was  significant,  that  in  the  catalogue 
of  the  Scottish  chancellors,  appended  to  Spottiswood's 
History  and  other  works,  no  mention  is  made  of  the  in- 
terval between  the  resignation  of  the  Archbishop  of  St. 
Andrew's  and  the  appointment  of  the  Earl  of  Loudon. 
In  the  margin  of  the  excerpt  was  a  reference  to  the  reg- 
ister of  the  Great  Seal  Book  57,  in  the  following  form : 
"Reg.  Mag.  Sig.  lib.  57;"  but  it  was  proved  that  this 
mode  of  marking  and-  reference  did  not  commence  until 
1806,  when  the  registers  were  rebound,  in  order  that 
they  should  have  one  title ;  and  that  previously  to  that 
time  the  title  of  those  documents  was,  "  Charters,  book 
i,  book  ii,"  and  so  on.  In  the  supposed  excerpt  the 
son  of  the  first  earl  was  styled  "  nostro  consanguineo"  a 
mode  of  address  never  adopted  in  old  charters  in  regard 
to  a  commoner ;  and  there  were  other  internal  incongru- 
ities. This  document  consisted  of  several  leaves  stitched 
together,  of  a  brown  color,  as  well  under  the  stitching  as 
where  open ;  whereas  if  the  stitching  had  been  old,  the 
part  of  the  paper  not  exposed  to  the  atmosphere  would 
have  been  whiter  than  the  rest.  Around  the  margin  of 
this  excerpt  were  drawn  red  lines  ;  but  it  was  proved  by 
official  persons  familiar  with  the  extracts  of  the  period, 
that  such  lines  were  not  introduced  into  the  Chancery 
Office  till  about  1780.  A  series  of  anachronisms  con- 
clusively disproved  the  authenticity  of  several  other  doc- 
uments adduced  by  the  prisoner  in  support  of  his  claim. 
One  of  those  documents  was  a  copper-plate  map  of  Can- 
ada by  Guillaume  de  I'lsle,  "  Premier  Geographe  du  Roi, 
avec  privilege  pour  vingt  ans,"  bearing  the  date  of  1703, 


144  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

on  the  back  of  which,  amongst  other  supposed  attest- 
ations, were  a  note  purporting  to  be  in  the  handwriting 
of  Flechier,  Bishop  of  Nismes,  dated  the  3d  of  June, 
1707,  and  another  note  purporting  to  be  in  the  hand- 
writing of  Fenelon,  Archbishop  of  Cambray,  of  the  date 
of  the  16th  of  October,  1707.  It  was  proved  that  Flech- 
ier  died  in  1711,  and  the  letters-patent  for  the  installation 
of  his  successor  in  the  bishopric  of  Nismes  were  pro- 
duced, bearing  date  the  26th  of  February  in  that  year ; 
that  Fenelon  died  on  the  7th  of  January,  1715  ;  and  that 
De  risle  was  not  appointed  geographer  to  the  king  until 
the  24th  of  August,  1718.  In  all  of  De  I'Isle's  editions 
of  his  map  the  original  date  of  1703  was  preserved  as 
the  commencement  of  his  copyright,  but  on  any  change 
of  residence  or  of  designation,  he  made  a  corresponding 
change  in  the  original  copper-plate  from  which  all  succes- 
sive issues  of  the  map  were  engraved,  and  it  was  proved 
by  a  scientific  witness  that  the  title  of  De  I'lsle  had  been 
actually  altered  on  the  copper-plate  of  the  map  since  1718. 
Of  course  a  map  issued  prior  to  1718  could  not  refer  to 
his  appointment  of  geographer  to  the  king,  and  any  at- 
testation of  the  date  of  1707  to  a  map  containing  a 
recognition  of  that  appointment  must  of  necessity  be 
spurious.  The  forger  of  the  map  must  have  been  misled 
by  the  date  of  1703  upon  it,  and  ignorant  of  the  fact  that 
De  risle  was  not  appointed  geographer  to  the  king  until 
1718  ;  so  difficult  is  it  to  preserve  consistency  in  an  at- 
tempt to  impose  by  means  of  forgery.  The  very  ink 
with  which  some  of  the  pretended  attestations  were 
made  was  not  the  usual  ink  of  the  period,  but  a  modern 
composition  made  to  imitate  ink  turned  old.  There  were 
other  strong  grounds  for  impugning  the  genuineness  of 


VERIFICATION    OF    DATES    AND    TIME.  145 

these  various  documents,  which  the  jury  unanimously 
found  to  be  forged." 

It  was  observed  by  Lord  C.  B.  Macdonahl,  that  thei'e 
is  nothing  we  are  so  little  in  the  habit  of,  as  measuring 
with  any  degree  of  correctness  small  portions  of  time ; 
and  that  if  any  one  were  to  examine,  with  a  watch  which 
marks  the  seconds,  how  much  longer  a  space  of  time  a  few 
seconds  or  a  few  minutes  really  are  than  people  in  general 
conceive  them  to  be,  they  would  be  surprised ;  but  that 
in  general,  when  we  speak  of  a  minute,  or  an  instant,  we 
can  hardly  be  understood  to  mean  more  than  that  it  was 
a  very  short  space  of  time.^  Nevertheless  it  is  some- 
times of  the  highest  importance  accurately  to  fix  the 
exact  time  of  the  occurrence  of  an  event,  and  a  differ- 
ence of  a  few  minutes  even  may  be  of  vital  moment. 
This  frequently  happens  where  the  defence  is  that  of  an 
alihi.  On  a  charge  of  murder,  where  the  defence  was  of 
that  nature,  and  it  was  essential  to  fix  the  precise  times 
at  which  the  prisoner  had  been  seen  by  the  several  wit- 
nesses soon  after  the  fatal  event  which  was  the  subject 
of  investigation,  the  object  was  satisfactorily  effected  by 
a  comparison  made  by  an  intelligent  witness  on  the  same 
day,  of  the  various  time-pieces  referred  to  by  the  sev- 
eral witnesses,  with  a  public  clock ;  thus  affording  the 
means  of  reducing  the  times  as  spoken  to  by  them  to  a 
common  standard.''  Post-office  marks  are  often  of  great 
importance  in  fixing  disputed  dates ;  but  it  is  remark- 
able that  in  two  late  cases  involving  charges  of  murder, 
the  defective  manner  in  which  they  were  impressed  ren- 

a  See  the  Reports  of  the  Trial  by  Archibald  Swinton,  Esq.,  and  AVilliam  Turn- 
bull,  Esq.;  Remarks  on  the  Trial,  by  an  English  Lawyer;  1  Townsend's  St.  Tr. 
403  ;  and  Dickson's  L.  of  Ev.,  ut  supra,  173. 

t"  Rex  V.  Patch,  Gurney's  Report,  171. 

•=  Rex  V.  Thornton,  infra. 

10 


146  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

(lered  them  useless,  and  became  the  subject  of  judicial 
animadversion,''  which  has  led  to  improvements  calcu- 
lated to  render  the  recurrence  of  any  such  matter  of 
complaint  most  unlikely. 

Scientific  testimony  grounded  on  the  state  of  wounds 
and  injuries  to  the  human  body,  or  on  its  condition  of 
decay,  is  frequently  employed  indirectly  in  the  solution 
of  questions  of  time  ;  but  cases  of  this  nature  belong  to 
the  department  of  medical  jurisprudence. 

'  »  By  L.  C.  J.  Campbell  in  Reg.  v.  Palmer,  infra;  and  by  the  L.  Justice  Clerk  in 
Reg.  r.  Madeleine  Smith,  infra. 


CHAPTER  V. 

EXCULPATORY  PRESUMPTIONS  AND  CIRCUMSTANTIAL 
EVIDENCE. 


The  law  of  England  recognizes  several  presumptions, 
juris  et  dejure,  which  create  entire  or  partial  exemption 
from  criminal  responsibility ;  as,  that  infants  under  the 
age  of  seven  years  cannot  be  guilty  of  crime,  that  infants 
above  that  age  and  under  fourteen  years  shall  be  immd 
/ac^6 adjudged  doliincapax,  and  that,  as  to  certain  offences 
connected  with  physical  development,  minors  under  the 
age  of  fourteen  years  shall  be  conclusively  presumed  to 
be  incapable  of  committing  them,  and  that  no  evidence 
shall  be  admitted  to  the  contrary.^  Such  also  is  the  pre- 
sumption that  offences  committed  by  the  wife  in  the  pres- 
ence of  her  husband  shall,  with  certain  exceptions,  be  con- 
sidered to  have  been  committed  by  his  coercion.''  But 
the  presumptions  which  concern  the  subject  of  this  essay 
are  of  a  diflerent  kind,  consisting  mainly  of  maxims  drawn 
from  well-digested  experience,  and  grounded  upon  con- 
siderations of  natural  equity,  for  the  candid  construction 
of  the  actions  and  motives  of  our  fellow-men,  and  which 
are  in  truth  but  particular  forms  of  strict  justice.  An 
enumeration  of  some  of  the  principal  of  these  presump- 
tions will  form  the  subject  of  this  chapter. 

1.  In  the  im^estigation  and  estimate  of  criminatory 

»  1  Hale's  P.  C.  ch.  3 ;  4  Bl.  Comm.  2.  ^  Ihid. 


148  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

evidence  there  is  an  antecedent  primd  facie  presump- 
tion in  favor  of  the  innocence  of  the  party  accused, 
grounded  in  reason  and  justice,  and  recognized  in  the 
judicial  practice  of  all  civilized  nations ;  which  pre- 
sumption must  prevail  until  it  be  destroyed  by  such  an 
overpowering  amount  of  legal  evidence  of  guilt  as  is 
calculated  to  produce  the  opposite  belief.''  It  must  be 
admitted  that  in  the  aggregate,  the  number  of  convic- 
tions vastly  exceeds  that  of  acquittals,  and  that  the  prob- 
ability is  that,  in  a  given  number  of  cases,  far  the  greater 
number  of  the  parties  accused  are  guilty ;  but  according 
to  all  judicial  statistics,  and  under  every  system,  a  con- 
siderable proportion  of  the  persons  put  upon  trial  are 
legally  innocent.  In  any  particular  case,  therefore,  the 
party  may  not  be  guilty,  and  it  is  impossible,  without  a 
violation  of  every  principle  of  justice,  to  act  upon  the 
contrary  presumption  of  a  superior  probability  of  guilt. 
It  is,  therefore,  a  settled  and  inviolable  principle,  that 
anterior  to  contrary  proof,  the  accused  shall  be  consid- 
ered as  legally  innocent,  and  that  his  case  shall  receive 
the  same  dispassionate  and  impartial  consideration  as  if 
he  were  really  so. 

2.  It  would  be  foreign  to  the  subject  of  this  essay  to 
discuss  the  considerations  which  affect  the  credibility  of 
evidence  in  general,  such  as  the  integrity,  disinterested- 
ness, and  ability  of  the  witnesses,  the  consistency  of  their 
testimony,  its  conformity  with  experience,  and  its  agree- 
ment with  collateral  circumstances,  since  these  consid- 
erations apply  to  circumstantial  only  in  common  with 
all  other  testimonial  evidence.  It  has  been  profoundly 
observed,  that  of  all  the  various  sources  of  error,  one  of 
the  most  copious  and  fatal  is  an  unreflecting  faith,  in 

a  See  the  language  of  Lord  Gillies  in  Rex  v.  M'Kinley,  33  St.  Tr.  506. 


EXCULPATORY   PRESUMPTIONS.  149 

human  testimony;*  and  it  is  obvious  that  all  reasoning 
upon  the  relevancy  and  etfect  of  circumstantial  evidence 
presupposes  its  absolute  verity,  and  that  such  evidence 
necessarily  partakes  of  the  infirmities  incidental  to  all 
human  testimony ;  and  facts  apparently  indicative  of  the 
most  forcible  presumption  have  been  fabricated  and  sup- 
ported by  false  testimony.  Every  consideration,  there- 
fore, which  detracts  from  the  credibility  of  evidence  in 
the  abstract,  applies  a  fortiori  to  evidence  which  is  essen- 
tially indirect  and  inferential.  In  such  cases,  falsehood 
in  the  minutest  particular  throws  discredit  upon  every 
part  of  a  complainant's  statement,  according  to  the  well- 
known  maxim,  qui  mendax  in  uno  mendax  in  07nnibiis. 
Hence,  since  facts  can  never  be  mutually  inconsistent,** 
circumstantial  evidence  frequently  affords  the  means  of 
evincing  the  falsehood  of  direct  and  positive  affirmative 
testimony,  and  even  of  disproving  the  existence  of  the 
corpus  delicti  itself,  by  manifesting  the  incompatibility  of 
that  testimony  with  surrounding  and  concomitant  circum- 
stances, of  the  reality  of  which  there  is  no  doubt."  Sir 
Matthew  Hale  mentions  a  very  remarkable  case,  where 
an  elderly  man  was  charged  with  violating  a  young  girl 
of  fourteen  years  of  age,  but  it  was  proved  beyond  all 
doubt  that  a  physical  infirmity  rendered  the  perpetration 
of  such  a  crime  utterly  impossible.*^  The  prosecutrix  of 
an  indictment  against  a  man  for  administering  arsenic  to 
her,  to  procure  abortion,  deposed  that  he  had  sent  her  a 
present  of  tarts,  of  which  she  partook,  and  that  shortly 
afterwards  she  was  seized  with  symptoms  of  poisoning. 
Amongst  other  inconsistencies,  she  stated  that  she  had 

»  1  Stewart's  Collected  Works,  247. 

''  Locke  on  the  Hum.  Underst.  b.  iv,  ch.  20,  s.  8. 

•"  Best  on  Pres.  p.  54.  i  1  P.  C.  c.  58. 


150  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

felt  a  coppery  taste  in  the  act  of  eating,  which  it  was 
proved  that  arsenic  does  not  possess  ;  and  from  the  quan- 
tity of  arsenic  in  the  tarts  which  remained  untouched, 
she  could  not  have  taken  above  two  grains,  while  after 
repeated  vomitings,  the  alleged  matter  subsequently 
preserved  contained  nearly  fifteen  grains,  though  the 
matter  first  vomited  contained  only  one  grain.  The 
prisoner  was  acquitted,  and  the  prosecutrix  afterwards 
confessed  that  she  had  preferred  the  charge  from 
motives  of  jealousy.'' 

3.  Irrespectively  of  and  distinct  from  any  positive 
discrepancy  in  the  account  given  by  a  complainant  party, 
there  is  a  consistency  of  deportment  and  conduct  ground- 
ed upon  the  invariable  laws  of  our  moral  nature,  which 
is  essentially  characteristic  of  truth  and  honesty,  and 
the  absence  of  which  necessarily  detracts  from  the  credit 
of  such  evidence,  and  therefore  tends  to  create  a  counter- 
presumption.  We  reasonably  expect  to  discover  in  the 
demeanor  of  a  party  who  has  just  reason  to  complain  of 
personal  injury  or  violated  honor  or  right,  prompt  and 
unequivocal  indications  of  that  sense  of  wrong  and  inse- 
curity, which,  as  the  invariable  consequence,  is  naturally 
and  involuntarily  generated  in  every  human  mind.  Sir 
Matthew  Hale,  in  reference  to  one  of  the  greatest  of  hu- 
man outrages,  says  :  "  If  the  party  concealed  the  injury 
for  any  considerable  time  after  she  had  opportunity  to 
complain ;  if  the  place  where  the  fact  was  supposed  to 
be  committed  were  near  to  inhabitants,  or  common  re- 
course or  passage  of  passengers,  and  she  made  no  outcry 
when  the  fact  was  supposed  to  be  done,  when  and  where 
it  is  probable  that  she  might  be  heard  by  others ;  these 
and  the  like  circumstances  carry  a  strong  presumption 

»  Reg.  V.  Whalley,  York  Spring  Assizes,  1829;  Christison  on  Poisons,  95. 


EXCULPATORY    PRESUMrTIONS.  151 

that  her  testimony  is  false  or  feigned."  *  These  caution- 
ary considerations  are  applicable  with  more  or  less  of 
force  to  accusations  of  every  description  ;  but  they  are 
more  especially  weighty  and  pertinent  in  reference  to  the 
particular  crime  referred  to,  of  which  the  learned  author 
has  said,  that  "  it  is  an  accusation  easily  to  be  made,  and 
hardly  to  be  proved,  and  harder  to  be  defended  by  the 
party  accused,  though  never  so  innocent."  ^  Such  cases, 
he  further  observes,  are  not  uncommon,  and  he  has  re- 
lated the  particulars  of  two  cases,  where,  though  the 
charges  were  groundless,  the  parties  with  difficulty  es- 
caped. "  I  only  mentioned  these  instances,"  said  that 
upright  judge,  "  that  we  may  be  the  more  cautious  upon 
trials  of  offences  of  this  nature,  wherein  the  court  and 
jury  may  with  so  much  ease  be  imposed  upon,  without 
great  care  and  vigilance,  the  heinousness  of  the  offence 
many  times  transporting  the  judge  and  jury  with  so 
much  indignation,  that  they  are  over-hastily  carried  to 
the  conviction  of  the  persons  accused  thereof  by  the  con- 
fident testimony  sometimes  of  malicious  and  false  wit- 
nesses." "^  False  charges  of  this  kind  have  unhappily 
been  too  common  and  too  successful  in  all  ages.  The 
social  consequences  of  female  dishonor  are  so  deadly, 
and  the  inducements  to  falsehood  and  revenge  so  peculiar 
and  so  powerful,  that  there  is  no  class  of  cases  in  which 
it  is  more  important  to  obtain  an  exact  knowledge  of  the 
motives  and  character  of  the  complainant.  For  these' 
reasons  great  latitude  of  cross-examination  is  permitted 
in  cases  of  this  kind,  and  it  is  competent  to  the  prisoner 
not  only  to  give  evidence  of  the  prosecutrix's  general 
bad  character,  but  also  to  examine  her  with  respect  to 

a  1  Hale's  P.  C.  c.  58.  "  Ihid. 

"  Ibid. 


152  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

particular  facts,  and  to  contradict  her  by  evidenqe  if  she 
shoukl  deny  them.* 

4.  Nor  is  the  danger  of  false  accusation  confined  to 
the  particular  class  of  offences  which  has  been  specially 
adverted  to.  Inducements  to  prefer  false  charges  may 
operate  with  greater  or  lesser  force  with  regard  to  ac- 
cusations of  every  kind.  Two  women  were  capitally 
convicted  of  robbing  a  young  girl  named  Canning,  and 
afterwards  confining  her  under  circumstances  of  great 
cruelty  for  twenty-nine  days  without  sustenance,  except 
a  quartern  loaf  and  a  pitcher  of  water.  Public  odium  was 
intensely  excited  against  the  prisoners,  and  they  very 
narrowly  escaped  execution,  and  yet  it  was  clearly  as- 
certained that  the  charge  was  a  fabrication  in  order  to 
conceal  the  prosecutrix's  misconduct  during  the  period  of 
her  absence  from  her  master's  house.^  Canning  was  after- 
wards convicted  of  perjury,  and  sentenced  to  be  trans- 
ported; and  upon  her  trial  thirty-eight  witnesses,  most  of 
them  unconnected  with  each  other,  spoke  to  the  identity 
of  one  of  her  unfortunate  victims,  and  proved  a  circum- 
st.antial  alibi."  Nine  persons  were  convicted  on  a  charge  of 
conspiracy  to  carry  off  from  the  house  of  her  guardian  a 
young  lady  of  seventeen  years  of  age,  in  order  to  procure 
her  clandestine  marriage  with  a  young  man  of  low  condi- 
tion for  whom  she  had  formed  an  attachment,  and  with 
whom  she  had  indulged  in  vulgar  familiarities.  She  gave 
her  testimony  in  a  manner  apparently  so  artless  and  in- 
genuous that  she  greatly  prepossessed  the  judge,  and 


»  Ilex  V.  Clarke,  2  Stark  Rep.  244  ;  Rex  v.  Barker,  3  C.  &  P.  589;  Rex  v.  Robins, 
2  M.  i  R.  512;  Rex  v.  Martin,  6  C.  &  P.  562;  Reg.  v.  Clay,  5  Cox's  C.  C.  146;  Reg. 
V.  Dean,  6  ib.  23;  Reg.  v,  Rocke,  6  ib.  196;  and  see  Taylor's  L.  of  Ev.  and  Ros- 
coe's  Digest,  where  the  cases  are  collected. 

''  Rex  V.  Squires  and  Wells,  19  St.  Tr.  275. 

"  Hex  V.  Canning,  19  St.  Tr.  667;  and  see  Lawrence's  Life  of  Fielding,  320. 


EXCULPATORY    PRESUMPTIONS.  153 

SO  favorably  impressed  the  jury  that  they  stopped  the 
prosecutor's  counsel  when  about  to  reply,  and  returned  a 
verdict  of  guilty.*  Her  story  was  nevertheless  discov- 
ered to  be  a  fabrication,  for  the  purpose  of  extrfcating 
herself  from  the  shame  of  her  levity  and  misconduct,  and 
she,  as  well  as  a  witness  who  had  corroborated  her  story, 
were  afterwards  convicted  of  perjury.''  Miscreants,  and 
among  them  even  the  inferior  ministers  of  the  law,  have 
concocted  and  procured  the  commission  of  robbery  and 
other  crimes  for  the  purpose  of  obtaining  the  pecuniary 
rewards  formerly  given  by  act  of  Parliament  for  the 
apprehension  and  conviction  of  offenders.'' 

It  is  frequently,  therefore,  of  the  highest  importance 
to  investigate  the  motives  of  the  complainant  party,  and 
to  ascertain  whether  they  are  such  as  may  have  led  to 
the  institution  of  a  false  charge.  The  just  course  of  in- 
quiry in  such  circumstances  was  thus  laid  down  by  Mr. 
Justice  Coltman.  "  The  jury,"  he  said,  "  had  nothing  to 
do  with  the  prosecutor's  motives,  except  so  far  as,  if  it 
should  appear  that  there  was  any  motive  for  the  prosecu- 
tion, of  an  unworthy  character,  made  out,  it  would  then 
be  their  duty  to  watch  such  a  case  much  more  narrowly 
than  one  in  which  no  such  motive  appeared.  Even  in 
that  case,  however,  if  the  evidence  satisfied  them  of  the 
truth  of  the  charge,  they  had  no  right  to  look  at  the 
motives  that  had  induced  the  prosecutor  to  prefer  it,  but 
were  bound  to  say  that  the  accused  person  was  guilty."'' 

5.  A  presumption  of  innocence  may  be  created  by  the 

*  Rex  V.  Bowditcli  and  others,  Dorchester  Summer  Ass.  1818,  coram  Mr.  Justice 
Park,  Shorthand  Rep. 

"  Rex  V.  Whitby,  and  Rex  v.  Glenn,  K.  B.  Guildhall,  Oct.  1820. 

=  Rex  V.  M'Daniel  and  others,  Foster's  Rep.  121 ;  Rex  v.  Vaughan  and  others 
Sessions  Papers,  1816;  Reg.  v.  Delahunt,  Dublin,  1842  j  cited  in  Best's  Princ,  ut 

ioiprn,  533. 

'1  Reg.  V.  Coyle,  C.  C.  C.  Oct.  Session,  1851. 


154  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

langnfige,  conduct  and  demeanor  of  the  party  charged 
with  crime :  and  it  is  upon  this  principle  that  the  in- 
genuous and  satisfactory  exphmation  of  circumstances 
of  suspicion  always  operates  in  favor  of  the  accused. 
Mr.  Justice  Earle  said  he  thought  it  was  extremely  im- 
portant, as  much  for  the  protection  of  innocence  as 
for  the  discovery  of  guilt,  that  the  accused  should  have 
an  opportunity  of  making  a  statement;*  and  the  Lord 
Justice  Clerk,  in  a  Scotch  case,  said  that  the  declara- 
tion of  a  prisoner,  if  fairly  given,  and  founded  in  truth, 
often  had  a  very  favorable  effect.''  It  is  evident,  how- 
ever, that  this  kind  of  presumption  must  be  attended 
"with  much  uncertainty,  and  in  its  application  require 
the  exercise  of  great  circumspection.  The  deportment 
of  innocence  may  be  simulated,  and  from  the  anomalies 
of  human  nature,  it  may  be  difficult  if  not  impractica- 
ble in  some  cases  to  determine  what  is  the  natural 
and  suitable  conduct  to  be  expected  from  a  party  in- 
fluenced by  the  pressure  of  an  accumulation  of  circum- 
stances at  once  threatening  and  fallacious.  It  is  certain 
that  innocent  persons  have  drawn  upon  themselves  the 
punishment  of  crime  by  conduct  apparently  consistent 
only  with  guilt,  but  which  has  erroneously  been  re- 
sorted to  as  likely  to  divert  or  repel  unjust  suspicion ; 
of  which  an  instructive  case  is  mentioned  by  Sir  Edward 
Coke.''  "  In  the  county  of  Warwick,"  says  he,  "  there 
were  two  brethren ;  the  one  having  issue  a  daughter, 
.and  being  seized  of  lands  in  fee,  devised  the  government 
of  his  daughter  and  his  lands  until  she  came  to  her  age 
vof  sixteen  years,  to  his  brother,  and  died.     The  uncle 


a  Keg.  V.  Baldwin,  21  L.  J.  M.  C.  130. 

^  Rex  V.  Wishart,  1  Syme's  Jud.  Rep.  App.  22. 

«  Third  Instit.  c.  104,  232. 


EXCULPATORY   PRESUMPTIONS.  155 

brought  up  his  niece  very  well,  both  at  her  book  and 
needle,  etc.,  and  she  was  about  eight  or  nine  years  of 
age ;  her  uncle  for  some  offence  correcting  her,  she  was 
heard  to  say,  '  Oh !  good  Uncle,  kill  me  not !'     After 
which  time  the  child,  after  much  inquiry,  could  not  be 
heard  of,  whereupon  the  uncle,  being  suspected  of  the 
murder  of  her,  the  rather  that  he  was  her  next  heir,  was 
upon  examination,  anno  8  Jac.  Regis,  committed  to  the 
jail  for  suspicion  of  murder ;  and  was  admonished  by  the 
justices  of  assize  to  find  out  the  child,  and  thereupon 
bailed  until  the  next  assizes.'    Against  which  time,  for 
that  he  could  not  find  her,  and  fearing  what  would  fall 
out  against  him,  he  took  another  child,  as  like  unto  her, 
both  in  person  and  years,  as  he  could  find,  and  appar- 
elled her  like  unto  the  true  child,  and  brought  her  to 
the  next  assizes ;  but  upon  view  and  examination  she 
was  found  not  to  be  the  true  child  ;  and  upon  these  pre- 
sumptions he  was  indicted,  found  guilty,  had  judgment, 
and  was  hanged.     But  the  truth  of  the  case  was,  that 
the  child,  being  beaten  over-night,  the  next  morning, 
when  she  should  go  to  school,  ran  away  into  the  next 
county ;  and  being  well  educated  she  was  reared  and  en- 
tertained of  a  stranger ;  and  when  she  was  sixteen  years 
old,  at  which  time  she  should  come  to  her  land,  she  came 
to  demand  it,  and  was  directly  proved  to  be  the  true 
child."     The  learned  author  adds,  "  We  have  reported 
this  case  for  a  double  caveat ;  first,  to  judges,  that  they 
in  cases  of  life  judge  not  too  hastily  upon  bare  presump- 
tion, and  secondly,  to  the  innocent  and  true  man,  that  he 
never  seek  to  excuse  himself  by  false  or  undue  means, 
lest  thei'eby  he,  ofi'ending  God   (the  author  of  truth), 
overthrow  himself  as  the  uncle  did."     From  the  fore- 
going considerations  it  follows  that  our  judgments  in 


156  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

regard  to  the  conduct  of  parties  under  accusation  for 
crime  must  occasionally  be  modified  by  allowances  for 
human  weakness  and  inconsistency,  which  can  in  no  de- 
gree be  admitted  as  qualifying  the  obligation  of  entire 
truthfulness  and  consistency  justly  exacted  from  those 
who  voluntarily  become  the  accusers  of  others. 

6.  Since  an  action  without  a  motive  would  be  an 
effect  without  a  cause,  a  presumption  is  consequently 
created  in  favor  of  innocence  from  the  absence  of  all 
apparent  inducement  to  the  commission  of  the  imputed 
offence.  But  the  investigation  of  human  motives  is  often 
a  matter  of  great  difficulty,  from  their  latency  or  remote- 
ness ;  and  experience  shows  that  aggravated  crimes  are 
sometimes  committed  from  very  slight  causes,  and  occa- 
sionally even  without  any  apparent  or  discoverable  mo- 
tive. This  particular  presumption  would,  therefore,  seem 
to  be  applicable  only  to  cases  where  the  guilt  of  the  in- 
dividual is  involved  in  doubt ;  and  the  consideration  for 
the  jury  in  general  is  rather  whether  upon  the  other  parts 
of  the  evidence  the  party  accused  has  committed  the 
crime,  than  whether  he  had  any  adequate  motive.'' 

7.  A  defendant  party's  motives,  even  where  they  are 
unquestionably  of  a  criminal  character,  may  nevertheless 
be  susceptible  of  different  interpretations,  and  indicative 
of  very  different  degrees  of  moral  and  legal  turpitude. 
Concealment  of  the  death  of  an  illegitimate  child  and 
the  clandestine  disposal  of  its  body,  for  instance,  may 
be  accounted  for,  either  by  a  purpose  to  suppress  evidence 
of  a  murder,  or  merely  by  the  desire  of  preserving  the 
reputation  of  female  chastity.  Where  a  woman  was  in- 
dicted jointly  with  her  husband  for  receiving  stolen  prop- 
erty knowing  it  to  have  been  stolen,  and  it  appeared 

»  See  Mr.  Justice  Abbott's  charge  in  Rex  v.  Donnall,  Rep.  ut  siqwa,  130. 


EXCULPATORY   PRESUMPTIONS.  157 

that  she  had  dealt  with  it  and  ultimately  destroyed  it, 
it  was  held  to  be  a  question  for  the  jury  whether  she 
had  so  received  and  dealt  with  it  to  aid  him  in  turning 
it  to  profit,  or  merely  to  conceal  his  guilt,  or  screen  him 
from  the  consequences.*  So  where  a  wdfe  attempted  to 
break  up  coining  implements  at  the  time  of  her  hus- 
band's apprehension,  it  was  held  that  if  done  with  the 
object  of  screening  him,  it  was  no  evidence  of  a  guilty 
possession  by  her.''  And  where  a  man  and  his  wife 
were  found  guilty  of  wounding  a  person  with  intent  to 
disfigure  him  and  to  do  him  grievous  bodily  harm,  but 
the  jury  found  that  the  wife  acted  under  the  coercion 
of  the  husband  and  did  not  personally  inflict  any  violence 
on  the  prosecutor,  it  was  held  by  the  Criminal  Court  of 
Appeal  that  the  conviction  against  the  wife  could  not  be 
supported.*"  In  all  such  cases,  every  sound  principle  of 
interpretation  and  judgment  requires,  that  in  the  absence 
of  contrary  proof  the  act  shall  be  referred  to  the  oper- 
ation of  the  least  guilty  motive ;  conformably  to  the 
maxim,  prcesumptio  judicatur  potenUor  quce  est  henignm'} 
Of  this  evident  principle  of  justice  the  statute  21  Jac.  I, 
c.  27  (now  happily  expunged  from  our  code),  which 
made  the  concealment  of  the  death  of  an  illegitimate 
child  by  its  mother  a  conclusive  pre.V'Liiiption  of  murder, 
unless  she  could  make  proof  by  one  witness,  at  least, 
that  the  child  was  born  dead,  was  a  flagrant  violation. 
It  is  on  this  principle  that,  when  a  special  intent  is  made 
by  statute  an  essential  ingredient  of  any  offence,  as  in 
the  cases  of  assault  with  intent  to  murder,  or  to  rob,  or 
to  commit  a  felony,  or  to  prevent  lawful  apprehension 

^  Reg.  V.  M'Clarens,  3  Cox's  C.  C.  425 ;  S.  P.  Reg.  v.  Brookes,  6  ib.  147. 

»  Reg.  V.  Boober,  5  Cox's  C.  C.  272. 

<=  Reg.  V.  Smith  and  wife,  27  L.  J.  M.  C.  204. 

^  Menoch,  ut  supra,  lib.  v,  pr.  29. 


158  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

or  detainer,  such  special  intent  must  be  proved  by  direct 
evidence  or  by  circumstances  which,  necessarily  or  rea- 
sonably lead  to  the  inference  of  such  intention.  Thus 
a  charge  of  the  statutable  offence  of  throwing  upon  or 
otherwise  applying  to  any  person  any  corrosive  fluid  or 
other  destructive  matter,  with  intent  to  burn,  maim,  or 
do  some  bodily  harm,  is  not  sustained  by  proof  of  throw- 
ing a  corrosive  fluid  for  the  purpose  of  burning  the 
clothes."  And  on  the  trial  of  a  man  for  throwing  a 
stone  at  a  railway  carriage  with  intent  to  endanger  the 
safety  of  the  passengers,  where  it  appeared  that  the 
prisoner  threw  a  stone  just  as  the  train  was  setting  off, 
at  a  passenger  against  whom  he  had  been  much  excited, 
Mr.  Justice  Erie  told  the  jury  that  they  must  be  satis- 
fied that  the  intent  to  endanger  the  safety  of  any  person 
travelling  by  the  railway  must  have  been  an  intent  to 
inflict  some  grievous  bodily  harm,  and  such  as  would 
sustain  an  indictment  for  assaulting  or  wounding  a  per- 
son with  intent  to  do  some  bodily  harm ;  but  that  as 
that  is  a  question  of  degree,  which  it  is  impossible  to 
define  further  than  in  those  terms,  it  must  be  a  question 
for  the  jury  upon  the  facts  whether  there  had  been  such 
an  intent.^ 

8.  The  prima  facie  presumption  in  favor  of  innocence, 
from  the  absence  of  all  apparent  motive,  is  greatly 
strengthened  where  all  inducement  to  the  commission 
of  the  imputed  crime  is  opposed  by  strong  counteracting 
motives  ;  as  where  a  party  indicted  for  arson  with  intent 
to  defraud  an  insurance  office  had  furniture  on  the  prem- 
ises worth  more  than  the  amount  of  his  insurance,^  or 

»  Reg.  V.  Coppard,  Kingst.  Wint.  Ass.  1855,  coram  Mr.  Justice  Crompton ;  and 
see  Rex  v.  Coke  and  Woodburne,  ut.  supra. 
b  Reg.  V.  Rooke,  1  F.  &  F.  107. 
«  Rex  V.  Bingham,  Horsham  Spr.  Ass.  1811. 


EXCULPATORY   PRESUMPTIONS.  159 

where  a  party  accused  of  murder  had  a  direct  interest 
in  the  continuance  of  the  life  of  the  party  supposed  to 
have  been  murdered.*  A  fortiori  would  this  presump- 
tion seem  to  apply  where  the  life  of  the  suspected  party 
has  been  endangered,  as  the  consequence  of  the  sup- 
posed criminal  act ;  as  where  a  party  charged  with  mur- 
der by  poisoning  had  herself  partaken  of  the  poisoned 
food :  ^  but  this  circumstance,  of  apparently  favorable 
presumption,  may  have  been  resorted  to  as  an  artifice 
to  avert  suspicion,  especially  if  the  quantity  taken  has 
not  been  sufficient  seriously  to  endanger  life." 

9.  Since  falsehood,  concealment,  flight,  and  other  like 
acts,  are  generally  regarded  as  indications  of  conscious 
guilt,  it  naturally  follows,  that  the  absence  of  these 
marks  of  mental  emotion,  and  still  more  a  voluntary 
surrender  to  justice,  when  the  party  had  the  opportunity 
of  concealment  or  flight,*^  must  be  considered  as  leading 
to  the  opposite  presumption;  and  these  considerations 
are  frequently  urged  with  just  effect,  as  indicative  of 
innocence ;  but  the  force  of  the  latter  circumstance  may 
be  weakened  by  the  consideration  that  the  party  has 
been  the  object  of  diligent  pursuit,"  or,  as  said  by  Lord 
Campbell,  though  the  party  may  have  abstained  from 
flight  from  a  sense  of  innocence,  he  may  have  done  so 
from  thinking  that,  from  the  course  he  had  taken,  noth- 
ing would  be  discovered  against  him.*"  It  must  be  also 
remembered,  that  flight  and  other  similar  indications  of 


*  Rex  V.  Downing,  infra. 

"  Reg.  V.  Hawkins,  Stafford  Summer  Ass.  1839. 

"  Rex  V.  Wescombe,  and  Rex  v.  Nairn,  vt  supra,  90;  and  see  Rex  v.  Fenning, 
L-oram  the  Recorder  of  London,  Sess.  Papers,  1815,  infra. 
^  Menochiu.s,  tit  supra,  lib.  v,  pr.  50. 
^  Rex  V.  Buish,  1  Syme's  Justiciary  Rep.  277. 
f  Reg.  V.  Palmer,  Short-hand  Report,  ut  supra,  310, 


160  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

fear  may  be  referable,  not  to  the  precise  offence  charged, 
but  to  other  circumstances,  as  to  disordered  affairs,*  or 
to  guilt  of  another  and  less  penal  character  than  that 
involved  in  the  particular  charge.** 

10.  As  in  the  case  with  other  presumptions,  so  the 
inference  of  guilt  from  the  recent  possession  of  stolen 
property  may  be  rebutted  by  circumstances  which  create 
a  counter-presumption  :  as  where  the  property  is  found 
in  the  prisoner's  possession  under  circumstances  which 
render  it  more  probable  that  some  other  person  was  the 
thief.  Therefore,  where,  on  the  trial  of  a  mother  and  her 
two  sons  for  sheep  stealing,  it  was  proved  that  the  carcass 
of  a  sheep  was  found  in  the  house  of  the  mother,  it  was 
considered  that  the  presumption  arising  from  the  pos- 
session of  the  stolen  property  immediately  after  the  theft 
was  rebutted  so  far  as  respected  her,  by  the  circumstance 
that  male  footsteps  only  were  found  near  the  spot  from 
which  the  sheep  had  been  stolen.''  A  woman  was  tried  for 
the  larceny  of  five  saws  which  had  been  stolen  from  the 
workshop  of  a  hat-block  turner  during  the  night.  There 
was  a  hole  in  the  building  large  enough  for  a  person  to 
h'ave  crept  through  it.  On  the  following  day  he  pledged 
two  of  the  saws  with  a  pawnbroker  in  the  neighborhood. 
On  the  following  night  the  house  of  the  prosecutor  was 
broken  open  and  a  number  of  articles  stolen,  and  no 
communication  existed  between  the  house  and  the  work- 
shop. Two  days  afterwards  the  prisoner  was  taken 
into  custody  for  this  theft,  in  the  house  of  a  man  who 
was  himself  charged  with  having  committed  the  burglary. 

a  Rex  V.  Crosfield,  26  S.  T.  217. 

i>  Rex  V.  Schofield,  31  St.  Tr.  1061 ;  and  see  the  language  of  Tindal,  C.  J.,  in  Hex 
V.  Frost,  Gurney's  Rep.  766,  749 ;  and  of  the  Lord  Justice  Clerk  Boyle,  in  Rex  v. 
Hunter,  and  others.  Court  of  Justiciary,  January,  1838,  Short-hand  Report,  36S. 

°  Rex  V.  Arundel  and  others,  1  Lewin's  C.  C.  115. 


EXCULPATORY    PRESUiMPTIONS.  161 

Mr.  Baron  Gurney  said  it  was  improbable  that  the  fe- 
male should  have  taken  these  saws,  but  that  it  was  ex- 
tremely probable  that  she  should  have  been  employed  by 
another  person  to  pawn  them ;  that  it  was  hardly  a  case 
in  which  the  general  rule  could  apply,  and  that  it  would 
be  safer  to  accjuit  the  prisoner,''  Circumstances  of  con- 
duct also  may  repel  this  prima  facie  presumption ;  as 
where  the  prisoner,  a  few  days  after  the  robbery  of  a 
large  quantity  of  plate  in  London,  sold  to  a  dealer  in  gold 
and  silver  some  silver  articles  marked  with  the  pros- 
ecutor's crest  partially  obliterated,  which  had  formed 
part  of  the  stolen  property.  Mr.  Baron  Bramwell  said 
it  was  a  circumstance  in  the  prisoner's  favor  that  he  had 
disposed  of  the  silver  at  a  place  where  he  had  been  known 
for  several  years,  and  had  been  in  the  habit  of  bringing 
gold  and  silver  for  sale,  and  did  not  appear  to  have  made 
an}'  attempt  at  secrecy.     The  pi'isoner  was  acquitted.^ 

11.  Circumstances  of  apparently  the  most  unfavorable 
presumption  may  be  susceptible  of  an  explanation  con- 
sistent with  the  prisoner's  innocence,  and  really  be  ir- 
relevant to  the  particular  inference  sought  to  be  derived 
from  them ; "  or  they  may  be  opposed  by  circumstances 
which  weaken  or  neutralize,  or  even  repel  the  imputed 
presumption,  and  induce  a  stronger  counter-presumption,'' 
to  every  allegation  of  the  existence  of  which  justice  de- 
mands that  dispassionate  and  candid  consideration  be 
given.  On  the  trial  of  a  shoemaker  for  the  murder  of 
an  aged  female,  it  appeared  that  his  leathern  apron  had 
several  circular  marks  made  by  paring  away  superficial 
pieces,  which  it  was  supposed  had  been  removed  as  con- 

a  Rex  i-.  Collier,  4  Jurist,  703. 
f  Reg.  V.  Benjamin,  C.  C.  C.  June,  1858. 
<=  Rex  r.  Thornton,  Rex  v.  Looker,  infra. 
« Ibid. 
11 


162  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

taining  spots  of  blood,  but  it  was  satisfactorily  proved 
that  the  prisoner  had  cut  them  off  for  plasters  for  a 
neighbor."  A  policeman  on  his  examination  before  the 
coroner,  where  the  question  was,  whether  a  young  woman 
had  been  murdered  or  had  committed  suicide,  swore  that 
a  piece  of  rope  found  in  the  prisoner's  box  appeared  to 
have  been  cut  from  the  same  piece  that  was  round  the 
neck  of  the  deceased  ;  but  on  the  trial  he  acknowledged 
that  he  had  been  mistaken ;  the  two  pieces  of  rope  had 
in  the  interim  been  examined  by  a  rope  maker,  and  were 
found  not  to  correspond,  one  piece  being  twisted  to  the 
right,  and  the  other  to  the  left.^  The  prisoner  was  con- 
victed upon  the  general  evidence,  and  executed.  Two 
men  were  tried  for  killing  a  sheep  with  intent  to  steal 
the  carcass.  The  prosecutor  had  three  sheep  on  a  com- 
mon, on  the  14th  of  December,  on  which  evening  the 
prisoners,  one  of  whom  had  a  gun,  were  seen  near  the 
common  driving  several  sheep  before  them.  One  of  the 
witnesses,  when  near  the  prosecutor's  house,  heard  the 
report  of  a  gun  in  the  direction  of  the  common,  and, 
having  a  suspicion  of  the  object  of  the  prisoners,, went 
to  the  prosecutor's  house  and  communicated  his  suspicion, 
in  consequence  of  which  the  prosecutor  and  the  witness 
went  to  the  common  on  which  the  sheep  had  been  left 
feeding,  and  discovered  that  one  of  them  was  not  there. 
The  prisoners  were  apprehended  the  same  night  at  their 
respective  homes.  In  the  lodgings  of  one  of  the  pris- 
oners a  gun  was  found  which  had  been  recently  fired, 
and  some  shot  and  powder  wrapped  in  a  piece  of  news- 
paper, from  which  two  small  pieces  had  been  torn ;  and 
upon  the  person  of  the  other  prisoner  a  knife  was  found 

»  Rex  V.  Fitter,  before  Mr.  Justice  Taunton,  Warwick  Summer  Ass.  1834. 
*>  Reg.  V.  Drory,  coram  Campbell,  L.  C.  J.,  Chelmsford  Spr.  Ass.  1851. 


EXCULPATORY    PRESUMniONS.  163 

discolored  with  blood.  No  traces  were  found  of  the  lost 
sheep  at  that  time,  but  the  next  day  the  carcass  was 
found,  concealed  by  fern,  on  the  common ;  the  sheep  had 
been  shot  and  also  stuck  in  the  neck.  Two  days  after- 
wards, on  searching  near  the  spot  where  the  carcass  was 
found,  two  small  pieces  of  newspap'er  were  discovered, 
singed  and  bearing  marks  of  having  been  fired  from  a 
gun,  which  on  comparison  were  found  to  be  the  identical 
pieces  so  torn  from  the  paper  in  question.  Notwithstand- 
ing these  apparently  conclusive  circumstances,  the  jury 
acquitted  the  prisoners,  as  it  appeared  from  the  cross- 
examination  of  one  of  the  witnesses  that  he  had  seen 
them  shooting  on  the  common  on  the  previous  Sunday.* 
A  man  was  tried  for  murder  on  Horwich  Moor,  under 
circumstances  which  were  extremely  suspicious ;  but 
the  presumption  against  him  was  greatly  weakened,  if 
not  entirely  destroyed,  by  the  circumstance  that  six  shots 
extracted  from  the  deceased's  brain  all  corresponded  in 
weight  with  the  shot  known  as  No.  3,  while  the  shot  in 
the  prisoner's  bag  contained  a  mixture  of  Nos.  2  and  3, 
and  the  charge  in  his  gun  was  found  to  contain  the  same 
mixture.''  A  druggist's  apprentice  was  tried  for  the 
murder,  by  prussic  acid,  of  a  female  servant  who  was 
pregnant  by  him,  and  the  case  was  one  of  much  suspi- 
cion ;  but  there  was  a  strong  counter-presumption,  from 
the  fact  that  the  deceased  had  made  preparations  for  a 
miscarriage  on  the  very  night  in  question.'' 

12.  Nor  must  it  be  overlooked,  as  one  of  the  sources 
of  error  and  fallacy  in  these  cases,  that  circumstances  of 

*  Reg.  I'.  Courtnage  and  Mossingham,  coram  Mr.  Serjeant  Atcherley,  Winchester 
Spring  Ass.  1843. 

''  Reg.  )".  Whittall,  Liverpool  Sjiring  Assizes,  1839,  coram  Mr.  Baron  Alderson. 

*  Reg.  I'.  Freeman,  Leicester  Spring  Assizes,  1839,  coram  Best,  L.  C.  J.;  and  see 
Rex  V.  Barnard,  19  St.  Tr.  815. 


164  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

adverse  presumption,  apparently  the  most  conclusive, 
have  been  fabricated  by  the  real  offender,  in  order  to 
preclude  suspicion  from  attaching  to  himself,  and  to  cause 
it  to  rest  upon  another ;  as  where  a  party  was  convicted 
upon  an  indictment  for  privily  conveying  three  ducats 
into  the  prosecutor'!  pockets,  with  intent  to  charge  him 
with  having  robbed  him  of  the  same ; '''  or  where  an  of- 
fender surreptitiously  put  on  the  shoes  of  another  person 
while  engaged  in  the  commission  of  crime,  in  order  that 
the  impressions  might  lead  to  the  inference  that  the 
crime  was  committed  by  him.** 

13.  In  forming  a  judgment  of  criminal  intention,  evi- 
dence that  the  party  had  previously  borne  a  good  char- 
acter is  often  highly  important,  and  if  the  case  hangs  in 
even  balance,  should  make  it  preponderate  in  his  favor.'' 
But  if  the  evidence  of  guilt  be  complete  and  convincing, 
testimony  of  previous  good  character  cannot  and  ought 
not  to  avail. "^  The  reasonable  operation  of  such  evidence 
is  to  create  a  presumption  that  the  party  was  not  likely 
to  have  committed  the  act  imputed  to  him ;  which  pre- 
sumption, however  weighty  in  a  doubtful  case,  cannot 
but  be  irrelevant  and  unavailing  against  evidence  which 
irrefragably  establishes  the  fact. 

Evidence  of  character  must  of  course  be  applicable  to 
the  particular  nature  of  the  charge ;  to  prove,  for  instance, 
that  a  party  has  borne  a  good  character  for  humanity  and 
kindness,  can  have  no  bearing  in  reference  to  a  charge  of 

'  Rex  V.  Simon,  19  St.  Tr.  680 ;  but  upon  a  new  trial  the  defendant  was  acquitted. 

"  See  the  case  of  Mayenc,  Gabriel,  ut  supra,  403;  and  see  other  such  cases  in 
Wharton's  C.  L.  of  the  U.  S. ;  and  in  the  Theory  of  Presumptive  Proof,  App. ;  but 
Mr.  Justice  Park,  in  Rex  v.  Thurtell,  Hertford  Winter  Assizes,  1824,  said  that  the 
latter  were  of  no  authority,  and  possibly  mere  romance. 

<=  Per  Lord  Ellenborough,  in  Rex  v.  Davison,  31  St.  Tr.  217;  and  see  the  language 
of  L.  C.  J.  Tindal  in  Reg.  v.  Frost,  Gurney's  Rep.  749. 

«  Ibid,  and  Rex  v.  Haigh,  31  St.  Tr.  1122. 


EXCULPATORY   PRESUMPTIONS.  165 

dishonesty.  The  correct  mode  of  inquiry  is,  as  to  the 
^^/2^r«^  character  of  the  accused,  and  whether  the  witness 
thinks  him  likely  to  be  guilty  of  the  offence  which  is 
charged  against  him.*  It  is  not  permitted  to  adduce 
evidence  that  the  prisoner  has  not  borne  a  good  char- 
acter, an  inquiry  which  is  really  irrelevant,  and  cal- 
culated to  divert  attention  from  a  true  point  to  a  col- 
lateral one,  since  even  if  his  general  character  were 
clearly  shown  to  be  bad,  he  may  not  have  committed 
the  act  in  question.  This  principle  has  been  carried 
so  far,  that,  on  an  indictment  for  a  particular  offence, 
evidence  of  an  admission  by  the  accused  that  he  was  ad- 
dicted to  the  commission  of  that  offence  was  rejected  as 
irrelevant.^  In  the  text-books  of  the  Civil  Law,  much 
stress  is  laid  upon  the  mala  fama,  and  in  Scotland  habit 
and  repute  is  an  admitted  aggravation  in  charges  of 
theft.*^  but  there  are  not  wanting  exemplifications  of  the 
danger  of  permitting  the  influence  of  such  evidence. 

If,  however,  the  presumption  arising  from  the  evidence 
of  previous  good  character  be  set  up  by  the  prisoner,  it  is 
then  competent  to  neutralize  its  effect  by  the  cross-ex- 
amination of  his  witnesses,  either  as  to  particular  facts,** 
or  as  to  the  grounds  of  their  belief,^  for  the  purpose  of 
discrediting  their  testimony;  but  it  is  not  competent  to 
repel  such  evidence  by  calling  witnesses  to  give  evidence 
of  the  prisoner's  general  bad  character.^  Thus  where  a 
prisoner  was  indicted  for  a  highway  robbery,  and  called 
a  witness  who  deposed  to  having  known  him  for  years, 

»  Per  Lord  Ellenborougb  in  Rex  t- .  Davison,  31  St.  Tr.  187. 

b  Rex  I'.  Cole,  Best  on  Pres.  p.  212. 

«  1  Dickson's  L.  of  Ev.,  ut  supra,  22. 

d  Reg.  r.  Hodgkins,  7  C.  &  P.  298. 

e  2  Stark,  304;  and  Taylor's  L.  of  Ev.  310. 

'  Reg.  V.  Burt  and  others,  5  Cox's  C.  C.  284. 

\ 


•t 


166  WILLS  (Jn  circumstantial  evidence. 

during  which  time  he  had  borne  a  good  character,  it 
was  permitted  to  ask  the  witness  on  cross-examination 
whether  he  had  not  heard  that  the  prisoner  was  suspected 
of  having  committed  a  robbery  which  had  taken  place  in 
the  neighborhood  some  years  before ;  Mr.  Baron  Parke 
said,  that  "  the  question  is  not  whether  the  prisoner  was 
guilty  of  that  robbery,  but  whether  he  was  suspected  of 
having  been  implicated  in  it.  A  man's  character,"  added 
the  learned  judge,  "  is  made  up  of  a  number  of  small  cir- 
cumstances, of  which  his  being  suspected  of  misconduct 
is  one;"*  but  Mr.  Justice  Erie  refused  to  permit  the 
cross-examination  of  a  witness  to  character  as  to  cir- 
cumstances of  suspicion  against  the  prisoner  which 
occurred  upon  the  same  day  as  the  alleged  offence  was 
committed.** 

As  a  general  rule,  neither  the  prosecutor  nor  the  pris- 
oner can  enter  into  evidence  as  to  particular  facts  of  good 
or  bad  conduct ;  but  an  exception  to  the  rule  has  been 
created  by  statute  6  and  7  William  IV,  c.  Ill,  which 
enacts  that,  if  upon  the  trial  of  any  person  for  any  sub- 
secjuent  felony,  such  person  shall  give  evidence  of  his 
good  character,  it  shall  be  lawful  for  the  prosecutor,  in 
answer  thereto,  to  give  evidence  of  the  conviction  of  such 
prisoner  for  the  previous  felony  ;  and  that  the  jury  shall 
inquire  of  the  previous  conviction  and  subsequent  offence 
at  the  same  time  ;  and  this  provision  has  been  extended 
by  St.  14  &  15  Vict.  c.  19,  s.  9,  to  many  misdemeanors. 
The  statutes  equally  apply  where  the  evidence  of  good 
character  is  obtained  by  the  prisoner's  counsel  on  the 
cross-examination  of  the  witnesses  for  the  prosecution.'' 


a  Rex  V.  Wood,  5  Jurist,  225 ;  and  Best  on  Pres.  215. 
»>  Reg.  V.  Rogan  and  Elliott,  1  Cox's  C.  C.  291. 
«  Reg.  V.  Shrimpton,  3  C.  &  K.  373. 


EXCULPATORY    PRESUMPTIONS.  167 

14.  Of  all  kinds  of  exculpatory  evidence,  that  of  an 
alibi,  if  clearly  established  by  unsuspected  testimony,  is 
the  most  satisfactory  and  conclusive.  While  the  forego- 
ing considerations  are  more  or  less  of  an  argumentative 
and  inconclusive  character,  this  defence,  if  the  element 
of  time  be  definitely  and  conclusively  fixed,  and  the  ac- 
cused be  shown  to  have  been  at  some  other  place  at  the 
time,  is  absolutely  incompatible  with,  and  exclusive  of, 
the  possibility  of  the  truth  of  the  charge.  "  It  must  be 
admitted,"  says  Sir  Michael  Foster,  "  that  mere  alibi 
evidence  lieth  under  a  great  and  general  prejudice,  and 
ought  to  be  heard  with  uncommon  caution;  but  if  it 
appeareth  to  be  founded  in  truth  it  is  the  best  nega- 
tive evidence  that  can  be  offered  :  it  is  really  positive  evi- 
dence, which  in  the  nature  of  things  necessarily  implieth 
a  negative ;  and  in  many  cases  it  is  the  only  evidence 
which  an  innocent  man  can  offer."* 

It  is  obviously  essential  to  the  proof  of  an  alibi  that  it 
should  cover  and  account  for  the  whole  of  the  time  of  the 
transaction  in  question,  or,  at  least,  for  so  much  of  it  as 
to  render  it  impossible  that  the  prisoner  could  have  com- 
mitted the  imputed  act ;  it  is  not  enough  that  it  renders 
his  guilt  improbable  merely,  and  if  the  time  is  not  exactly 
fixed,  and  the  place  at  which  the  accused  is  alleged  by  the 
defence  to  have  been  is  not  far  off,  the  question  then  be- 
comes one  of  probabilities.  A  defence  for  an  alihi  was 
therefore  disregarded,  because  all  that  the  prisoners  of- 
fered to  prove  was  that  they  were  in  bed  on  the  night  in 
question  at  twelve  o'clock,  and  were  found  in  bed  next 
morning,  after  the  arson  with  which  they  were  charged 
had  taken  place,  the  distance  being  two  miles,  so  that 

*  Foster's  C.  L.,  ut  supra,  368 ;  and  see  the  observations  of  Mr.  Baron  George,  in 
Rex  V.  Brennan,  30  St.  Tr.  79. 


168  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

they  might  have  risen,  committed  the  deed,  and  returned 
to  bed.^  On  the  trial  of  a  man  for  the  murder  of  a  young 
woman  under  circumstances  of  the  strongest  adverse  pre- 
sumption, the  proof  was  that  the  deceased  had  been  mur- 
dered at  her  father's  cottage  in  the  forenoon  of  the  day 
in  question,  and  the  prisoner  alleged  that  he  was  at  work 
the  whole  of  that  day  with  his  fellow-laborers  at  a  dis- 
tance from  the  cottage  :  but  it  turned  out  that  he  had 
been  absent  from  his  work  about  half  an  hour,  an  inter- 
val sufficiently  long  to  have  enabled  him  to  reach  the 
cottage,  commit  the  murder,  and  rejoin  his  fellow-work- 
men. He  was  convicted,  and  before  his  execution  con- 
fessed his  guilt.^ 

The  credibility  of  an  alibiis  greatly  strengthened  if  it 
be  set  up  at  the  moment  when  the  accusation  is  first 
made,  and  be  consistently  maintained  throughout  the 
subsequent  proceedings.  These  conditions  were  remark- 
ably fulfilled  in  the  memorable  case  of  Abraham  Thorn- 
ton, of  which  a  full  account  will  be  given  thereafter.  To 
all  appearance  the  guilt  of  the  prisoner  was  the  necessary 
conclusion  from  the  supposed  inculpatory  facts,  and  yet 
he  had  been  seen  by  a  number  of  independent  and  unim- 
peachable witnesses  at  such  a  distance  from  the  scene  of 
the  alleged  murder,  at  the  very  time  when  it  must  have 
been  committed,  if  at  all,  as  to  render  it  physically  im- 
possible that  the  deceased  could  have  been  murdered  by 
him ;  and  all  the  facts  supposed  to  have  been  the  con- 
clusive indications  of  guilt  were  satisfactorily  explained 
by  collateral  circumstances,  and  by  a  different  hypoth- 
esis.'' 

*  Rex  V.  Fraser,  Alison's  Princ.  625.  *>  Rex  v.  Richardson,  infra. 

"=  Rex  u.  Thornton,  infra;  and  see  Rex  v.  Canning,  19  St.  Tr.  283,  where  the 
prosecutrix  of  a  capital  charge  was  convicted  of  perjury  on  the  evidence  of  thirty- 
eight  witnesses  who  proved  an  alibi. 


EXCULPATORY   PRESUMPTIONS.  169 

On  the  other  hand,  it  is  a  material  circumstance  to 
lessen  the  weight  of  this  defence,  if  it  be  not  resorted  to 
until  some  time  after  the  charge  has  been  made ;  or  if 
nothing  happened  immediately  after  the  transaction  to 
lead  the  witnesses  to  watch  so  as  to  be  accurate  in  the 
hour  or  time  to  which  they  speak,  even  supposing  them 
to  depose  under  no  improper  bias  or  influence  ;"*  or  if 
having  been  once  resorted  to,  a  different  and  inconsist- 
ent defence  is  afterwards  set  up.  There  are  many  other 
sources  of  follacy  connected  with  this  particular  defence  ; 
such  as  mistake  as  to  the  person  from  want  of  an  oppor- 
tunity of  accurate  observation,  or  other  causes  of  mis- 
conception, the  possible  difference  of  clocks;^  or  the 
fraudulent  alteration  of  them  to  tally  with  other  facts ; 
as  where  one  of  the  perpetrators  of  a  murder  hastened 
home,  put  back  the  clock  two  hours,  and  went  to  bed, 
and  shortly  afterwards  awoke  his  servant,  and  told  her 
to  go  down  stairs  and  see  what  was  the  time,  which  she 
did,  not  knowing  that  the  clock  had  been  tampered 
with ;  so  that  her  testimony  led  to  his  acquittal." 

A  group  of  irrelevant  facts  is  sometimes  artfully  ar- 
ranged so  as  to  give  an  appearance  of  reality  and  cohe- 
rence to  the  defence,  the  facts  being  true  in  themselves, 
but  fraudulently  referred  to  the  critical  day  or  time,  in- 
stead of  to  the  real  time  of  their  occurrence  f  or  such  a 
misstatement  may  take  place  by  unintentional  mistake.*' 

a  Per  Mr.  Justice  Le  Blanc  in  Rex  v.  Mellor  and  others,  31  St.  Tr.  1032  ;  and  see 
Rex  V.  Haigh,  ib.  1118;  and  the  observations  of  Shaw,  C.  J.,  in  Webster's  case. 
Bemis's  Rep.,  tit  supra,  478. 

»  Rex  V.  Schofield,  31  St.  Tr.  1063  ;  Rex  v.  Mellor,  ib.  1027. 

0  Rex  V.  Hardy;  see  the  "  Times"  newspaper  of  the  28th  November,  1857,  where 
it  is  stated  that  one  of  the  murderers  made  a  circumstantial  confession  on  his 
death-bed. 

^  See  a  case  of  this  kind  in  8  Lond.  Med.  Gaz.  36. 

«  Rex  V.  Baines,  31  St.  Tr.  1091;  Rex  v.  Haigh,  ut  supra. 


170  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

In  an  American  case,  where  several  persons  were  tried 
for  an  atrocious  murder,  it  appears  to  have  been  a  part 
of  the  plot  for  each  of  the  prisoners  to  sleep  on  the 
night  of  the  murder  with  some  one  who  could  testify  to 
an  alibi.  One  of  the  murderers  had  requested  a  man  to 
sleep  in  his  house  ;  but  the  witness  stated  that  he  might 
have  been  absent  while  he  was  asleep.  Another  of  them 
went  several  miles  from  the  place  of  the  murder  to  sleep, 
and  the  person  in  whose  house  he  staid  had  no  doubt 
that  he  was  within  doors  the  whole  night.  Two  others 
of  them  went  to  a  tavern  several  miles  from  the  scene  of 
the  murder,  and  went  to  bed  together;  but  in  the  night 
one  of  them  was  discovered  leaving  the  house,  although 
he  evidently  wished  to  be  unnoticed ;  and  he  was  absent 
so  long,  not  returning  until  the  morning,  as  to  alarm  the 
tavern-keeper,  who  with  his  wife  made  diligent  search 
for  him  in  the  neighborhood,  but  his  bed-fellow  mani- 
fested no  anxiety  or  alarm,  and  got  up  and  assisted  in 
the  search.* 

This  defence  is  especially  easy  of  fabrication  or  mis- 
take in  regard  to  the  essential  element  of  time,  where  a 
few  minutes  may  be  of  vital  moment ;  and  the  unblush- 
ing effrontery  with  which  witnesses  sometimes  present 
themselves  to  speak  to  time,  without  regard  to  plausi- 
bility or  consistency,  is  truly  surprising.  On  a  trial  for 
murder,  two  witnesses  who  were  called  to  support  a  de- 
fence of  an  alihi,  swoTe  that  they  were  able  to  speak 
positively  to  the  time,  from  having  looked  at  a  clock ; 
but  upon  being  required  by  the  counsel  for  the  prose- 
cution to  tell  the  time  by  the  clock  in  court,  after  some 
hesitation  they  admitted  that  they  were  unable  to  do  so.** 

^  Case  of  Bauer  and  others,  2  Chandl.  Amer.  Or.  Tr.  356. 
b  Reg,  V.  Cane  and  others,  C.  C.  C.  20th  of  June,  1851. 


EXCULPATORY    PRESUMPTIONS.  171 

111  another  case  it  was  elicited  in  cross-examination  of 
a  woman  with  whom  the  prisoner  lived,  that  on  his 
return  home  after  an  absence  of  an  hour,  during  which 
he  committed  two  murders,  he  told  her  to  say  that  he 
had  not  been  out  more  than  ten  minutes." 

Wherever  pertinent  and  material  evidence  by  which 
an  alibi  mv^ht,  if  true,  have  been  supported,  is  withheld.'' 
or  the  defence  fails  of  being  supported  by  credible  and 
sufficient  evidence,  or  is  detected  to  be  the  result  of 
after-thought  or  contrivance,  or  is  contradicted,  or  other- 
wise rebutted,  the  attempt  to  set  it  up  recoils  with  fatal 
effect  upon  the  party  who  asserts  it ;  and,  in  the  language 
of  a  learned  judge  on  the  Irish  bench,  "  amounts  to  a 
conviction."'' 

"'■  The  truth  of  this  sort  of  defence,"  said  Mr.  Baron 
George,  "  is  not  always  to  be  ascertained  by  the  direct 
testimony  of  the  witnesses  called  to  prove  it.  Several 
witnesses  are  seldom  produced  in  such  cases  without  its 
being  known  that  they  agree  with  each  other  in  the  sub- 
stantial and  principal  facts  they  are  to  relate ;  and  as  in 
general  it  is  not  to  be  expected  that  a  prosecutor  should 
come  with  evidence  prepared  to  meet  this  sort  of  de- 
fence, the  usual  test  of  its  truth  or  of  its  falsehood,  where 
they  are  unknown  to  the  jury,  is  a  cross-examination  of 
the  witnesses,  kept  asunder,  and  fairly  conducted  under 
the  eye  and  observation  of  the  jury ;  and  here  differ- 
ences or  contradictions,  otherwise  trivial,  become  import- 
ant in  showing  the  truth  or  falsehood  of  such  narrative."*^ 
In  such  circumstances,  if  the  story  be  a  fabrication,  it  is 

•■^  Reg.  V.  Rush,  Norfolk  Spr.  Ass.  1849. 

••  Rex  I'.  Haigh  and  others,  ut  stqjra  ;  Rex  v.  Hunter  and  others,  Rep.,  «^  sn- 
pra,  365. 

0  By  Mr.  Baron  Daly,  in  Rex  v.  Killan,  28  St.  Tr.  1085. 
<»  Rex  V.  Brennan,  30  St.  Tr.  79. 


172  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

obviously  far  more  easy  for  the  witnesses  to  agree  on 
the  mere  general  fact  of  the  prisoner's  presence  at  the 
time  and  place  referred  to,  than  on  the  minute  surround- 
ing particulars.^ 

The  foregoing  examples  suffice  to  illustrate  the  subject 
of  exculpatory  presumptions  ;  but  it  is  obvious  that  as 
inculpatory  facts  are  infinitely  diversified,  exculpatory 
facts  must  admit  of  the  same  extent  of  variety,  and  that 
they  may  be  of  every  degree  of  force.  In  all  such  cases 
of  conflicting  presumptions  it  is  the  duty  of  the  jury, 
with  the  assistance  of  the  court,  to  weigh  and  estimate 
the  force  of  each  several  circumstance  of  presumption, 
and  to  act  upon  what  appear  to  be  the  superior  probabil- 
ities of  the  case ;  and  if  there  be  not  a  decided  prepon- 
derance of  evidence  to  establish  the  guilt  of  the  party, 
to  take  the  safe  and  just  course,  by  abstaining  from 
pronouncing  a  verdict  of  guilt,  where  the  necessary  light 
and  knowledge  to  justify  them  in  so  doing  with  the  full 
assurance  of  moral  certainty  is  unattainable .'^ 

*■  Reg.  V.  Hunter,  Rep.,  ut  supra,  365. 
''  Mittennaier,  ««  supra,  cb.  56. 


CHAPTER  VL 

RULES  OF  INDUCTION  SPECIALLY  APPLICABLE   TO 
CIRCUMSTANTIAL   EVIDENCE. 


All  reasoning  concerning  human  conduct  is  essen- 
tially a  process  of  induction,  of  which  it  is  the  object, 
by  means  of  generalizations  founded  upon  a  knowledge 
of  the  faculties,  emotions,  and  laws  of  the  mind,  to  dis- 
cover the  moral  qualities  and  causal  origin  of  the  volun- 
tary actions  of  our  fellow-men ;  whence  it  follows  that 
the  rules  for  the  conduct  of  inductive  inquiry  belong 
formally  to  the  province  of  Logic,  or  the  science  of  the 
laws  of  thought.  The  rules  of  evidence  are,  therefore, 
a  selection  of  maxims  tacitly  assumed  and  acted  upon 
by  all  men  in  the  ordinary  affairs  of  life,  and  recognized 
by  philosophical  wisdom  and  judicial  experience  as  the 
best  means  of  discovering  truth.  The  purpose  of  this 
essay  requires  the  enumeration  only  of  such  few  leading- 
rules  of  evidence  as  are  of  special,  though  not  of  exclu- 
sive application,  to  the  particular  subject-matter  of  this 
treatise.* 

Rule  1. — The  facts  alleged  as  the  basis  of  any  legal 
inference  must  he  clearly  jn^ovecl,  and  indubitably  connected 
with  the  factum  probandum.  This  rule  is  an  indispens- 
able condition  of  all  sound  induction ;  and  its  object  is, 
by  proper  rejections  and  exclusions,  and  after  as  many 
negations  as  are  necessary,''  to  verify  facts  and  clear 

*  Mittermaier,  nt  supra,  ch.  57. 

''  Nov.  Org.  lib.  i ;  Aphor.  cv,  2 ;  MiU's  Log.  b.  v,  ch.  2  and  3. 


174  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

them  from  all  ambiguity,  so  that  they  may  become  the 
premises  of  logical  argument  and  reasoning.  In  moral 
investigations  the  facts  are  generally  more  obscurely 
developed  than  when  physical  phenomena  form  the  sub- 
jects of  inquiry ;  and  they  are  frequently  blended  with 
foreign  and  irrelevant  circumstances,  so  that  the  estab- 
lishment of  their  connection  with  the  factum  prohandum 
becomes  matter  of  considerable  difficulty.  No  weight, 
therefore,  must  be  attached  to  circumstances  which,  how- 
ever they  may  excite  conjecture,  do  not  w^arrant  belief. 
Occurrences  may  be  mysterious  and  justify  even  vehe- 
ment suspicion,  and  yet  the  supposed  connection  between 
them  may  be  but  imaginary,  and  their  co-existence  in- 
dicative of  accidental  concurrence  merely,  and  not  of 
mutual  correlation.  "Where  there  is  nothing  but  the 
evidence  of  circumstances  to  guide  you,"  said  Mr.  Jus- 
tice Bailey,  "  those  circumstances  ought  to  be  closely 
and  necessarily  connected,  and  to  be  made  as  clear  as  if 
there  were  absolute  and  positive  proof."  ^  Every  cir- 
cumstance, therefore,  which  is  not  clearly  shown  to  be 
really  connected  as  its  correlative  with  the  hypothesis 
it  is  supposed  to  support,  must  be  rejected  from  the 
judicial  balance  \  in  other  words,  it  must  be  distinctly 
established  that  there  exists  between  the  factum  pro- 
handum and  the  facts  which  are  adduced  in  proof  of  it, 
a  real  connection,  either  evident  and  necessary,  or  so 
highly  probable  as  to  admit  of  no  other  reasonable  ex- 
planation? 

The  following  cases  will  serve  to  manifest  the  dan- 
gerous consequences  which  may  ensue  from  the  dis- 
regard of  this  most  salutary  cautionary  rule. 

*  Rex  V.  Downing,  Salop  Summer  Ass.  1822,  infra. 
^  Mittermaier,  ut  sit/)j-a,_ch.  55,  57. 


RULES   OF    EVIDENCE.  175 

Two  brothers-in-law,  Joseph  Downing  and  Samuel 
Whitehouse,  met  by  appointment  to  shoot,  and  after- 
wards to  look  at  an  estate,  which  on  the  death  of  White- 
house's  wife  without  issue  would  devolve  on  Downing. 
They  arrived  at  the  place  of  meeting  on  horseback, 
Downing  carrying  a  gun-barrel  and  leading  a  colt.  After 
the  business  of  the  day,  and  drinking  together  some 
hours,  they  set  out  to  return  home.  Downing  leading 
his  colt  as  in  the  morning.  Their  way  led  through,  a 
gate  opening  from  the  turnpike-road,  and  thence  by  a 
narrow  track  through  a  wood.  On  arriving  at  the  gate. 
Downing  discovered  that  he  had  forgotten  his  gun- 
barrel  ;  and  a  man  who  accompanied  them  to  open  the 
gate  went  back  for  it,  returning  in  about  three  minutes. 
In  the  meantime  Whitehouse  had  gone  on  in  advance ; 
and  the  prisoner,  having  received  his  gun-barrel,  fol- 
lowed in  the  same  direction.  Shortly  afterwards  White- 
house  was  found  lying  on  the  ground  in  the  wood,  at  a 
part  where  the  track  widened,  about  600  j^ards  from  the 
gate,  with  his  hat  off,  and  insensible  from  several  wounds 
in  the  head,  one  of  which  had  fractured  his  skull.  While 
the  person  by  whom  he  was  discovered  went  for  assist- 
ance, the  deceased  had  been  turned  over  and  robbed  of 
his  watch  and  money.  About  the  same  time  Downing 
was  seen  in  advance  of  the  spot  where  the  deceased  lay, 
proceeding  homeward  and  leading  his  colt ;  and  a  few 
minutes  afterwards  two  men  were  seen  following  in  the 
same  direction.  Suspicion  attached  to  Downing,  partly 
from  his  interest  in  the  estate  enjoyed  by  the  deceased, 
and  he  was  put  upon  his  trial  for  this  supposed  murder; 
but  it  was  clear  that  he  had  no  motive  on  that  account 
to  kill  the  deceased,  as  the  estate  was  not  to  come  to 
him  until  after  failure  of  issue  of  the  deceased's  wife,  tu 


176  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

whom  he  had  been  married  several  years  without  hav- 
ing had  children ;  so  that  it  was  his  interest  that  the 
way  should  not  be  opened  to  a  second  marriage.  That 
the  deceased  had  been  murdered  at  all  was  a  highly 
improbable  conjecture,  and  it  was  far  more  probable  that 
he  had  fallen  from  his  horse  and  received  a  kick,  espec- 
ially as  his  hat  bore  no  marks  of  injury,  so  that  it  had 
probably  fallen  oft'  before  the  infliction  of  the  wounds. 
That  the  deceased,  if  murdered  at  all,  had  been  mur- 
dered by  the  prisoner  was  in  the  highest  degree  im- 
probable, considering  how  both  his  hands  must  have 
been  employed,  nor  was  there  any  evidence  that  the 
deceased  had  been  robbed  by  the  prisoner.  It  thus 
appeared  that  these  accumulated  circumstances,  of  sup- 
posed inculpatory  presumption,  were  really  irrelevant 
and  unconnected  with  any  corpus  delicti.^  The  prisoner 
was  acquitted ;  and  it  is  instructive  that  about  twelve 
months  afterwards  the  mystery  of  the  robbery,  the  only 
real  circumstance  of  suspicion,  was  cleared  up.  A  man 
was  apprehended  upon  offering  the  deceased's  watch  for 
sale,  and  brought  to  trial  for  the  theft  of  it,  and  acquitted, 
the  judge  thinking  that  he  ought  not  to  be  called  upon, 
at  so  distant  a  period,  to  account  for  the  possession  of 
the  deceased's  property,  which  he  might  have  purchased, 
or  otherwise  fairly  acquired,  without  being  able  to  prove 
it  by  evidence.  The  accused,  when  no  longer  in  danger, 
acknowledged  that  he  had  robbed  the  deceased,  whom 
he  found  lying  drunk  on  the  road,  as  he  believed ;  but 
that  he  had  concealed  the  watch,  on  learning  that  it  was 
supposed  that  he  had  been  murdered,  in  order  to  prevent 
suspicion  from  attaching  to  himself. 

A  farmer  was  tried  under  the  special  commission  for 

*  Rex  V.  Downing,  Salop  Sum.  Ass.  1822,  coram  Mr.  Justice  Bayley. 


RULES    OF    EVIDENCE.  177 

Wiltshire,  in  January,  1831,  upon  an  indictment  which 
charged  him  with  having  feloniously  sent  a  threatening 
letter,  which  was  alleged  to  have  been  written  by  him. 
That  the  letter  was  in  the  prisoner's  handwriting  was 
positively  deposed  by  witnesses  w^ho  had  had  ample 
means  of  becoming  acquainted  with  it,  while  the  con- 
trary was  as  positively  deposed  on  the  part  of  the  pris- 
oner by  numerous  witnesses  equally  competent  to  speak 
to  the  fact.     But  the  scale  appears  to  have  been  turned 
by  the  circumstance  that  the  letter  in  question,  and  two 
others  of  the  same  kind  to  other  persons,  together  with  a 
scrap  of  paper  found  in  the  prisoner's  bureau,  had  formed 
one  sheet  of  paper ;   the  ragged  edges  of  the  different 
portions  exactly  fitting  each  other,  and  the  water-mark 
name  of  the  maker,  which  w^as  divided  into  three  parts, 
being  perfect  when  the  portions  of  paper  were  united. 
The  jury  found   the  prisoner  guilty,  and  he  was  sen- 
tenced to  be  transported  for  fourteen  years.     The  judge 
and  jury  having  retired  for  a  few  minutes,  during  their 
absence  the  prisoner's  son,  a  youth  about  eighteen  years 
of  age,  was  brought  to  the  table  by  the  prisoner's  attor- 
ney, and  confessed  that  he  had  been  the  writer  of  the 
letter  in  question,  and  not  his  father.     He  then  WTote 
on  a  piece  of  paper  from  memory  a  copy  of  the  contents 
of  the  anonymous  letter,  which  on  comparison  left  no> 
doubt  of  the  truth  of  his  statement.     The  writing  was 
not  a  verbatim  copy,  although  it  differed  but  little ;  and 
the  bad  spelling  of  the  original  was  repeated  in  the  copy. 
The  original  was  then  handed  to  him,  and  on  being  de- 
sired to  do  so,  he  copied  it,  and  the  writing  w^as  exactly 
alike.     Upon  the  return  of  the  learned  judge  the  circum- 
stances were  mentioned  to  him,  and  two  days  afterwards 

the  son  was  put  upon  his  trial  and  convicted  of  the 
12 


178  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

identical  offence  which  had  been  imputed  to  the  father. 
It  appeared  that  he  had  access  to  the  bureau,  which 
was  commonly  left  open.  The  writing  of  the  letter  con- 
stituted in  fact  the  corpus  delicti ;  there  having  been  no 
other  evidence  to  inculpate  the  prisoner  as  the  sender  of 
the  letter,  which  would  however  have  been  the  natural 
and  irresistible  inference  if  he  had  been  the  writer.  The 
correspondence  of  the  fragment  of  paper  found  in  the 
prisoner's  bureau  with  the  letter  in  question,  and  with 
the  two  others  of  the  same  nature  sent  to  other  persons, 
was  simply  a  circumstance  of  suspicion,  but  foreign,  as 
it  turned  out,  to  th.^  factum  in  question  ;  and  considering 
that  other  persons  had  access  to  the  bureau,  its  weight 
as  a  circumstance  of  suspicion  seems  to  have  been  over- 
rated.* 

But,  perhaps,  the  most  extraordinary  and  instructive 
case  of  this  kind  that  has  ever  occurred,  was  that  of 
Abraham  Thornton,  who  was  tried  at  the  Warwick  Au- 
tumn Assizes,  1817,  before  Mr.  Justice  Holroyd,  for  the 
alleged  murder  of  a  young  woman,  who  was  found  dead 
in  a  pit  of  water,  about  seven  o'clock  in  the  morning, 
with  marks  of  violence  about  her  person  and  dress,  from 
which  it  was  supposed  that  she  had  been  violated,  and 
afterwards  drowned.  The  deceased's  bonnet  and  shoes 
and  a  bundle  were  found  on  the  bank  of  the  pit.  Upon 
the  grass,  at  the  distance  of  forty  yards,  there  was  the 
impression  of  an  extended  human  figure,  and  a  large 
quantity  of  blood  was  upon  the  ground  near  the  lower 
extremity  of  the  figure,  where  there  were  also  the  marks 
of  large  shoe-toes.  Spots  of  blood  were  traced  for  ten 
yards  in  a  direction  leading  from  the  impression  to  the 

*  Rex  V.  Isaac  Looker,  Rex  v.  Edward  Looker,  A.  R.  1831,  9;  and  see  Sclecti'ms 
from  the  charges  of  Mr.  Baron  Alderson. 


RULES   OF   EVIDENCE.  179 

pit,  upon  a  footpath,  and  about  a  foot  and  a  half  from  the 
path  upon  the  grass  on  one  side  of  it.  When  the  body 
was  found,  there  was  no  trace  of  any  footstep  on  the 
grass,  which  was  covered  with  dew  and  not  otherwise 
disturbed  than  by  the  blood ;  from  which  circumstance 
it  was  insisted  that  the  spots  of  blood  must  have  fallen 
from  the  body  while  being  carried  in  some  person's  arms. 
Upon  the  examination  of  the  body,  about  half  a  pint  of 
water  and  some  duckweed  were  found  in  the  stomach,  so 
that  the  deceased  must  have  been  alive  when  immersed 
in  the  water.  There  were  lacerations  about  the  parts 
of  generation,  but  nothing  which  might  not  have  been 
caused  by  sexual  intercourse  with  consent.  Soon  after 
the  discovery  of  the  body,  there  were  found  in  a  newly 
harrowed  field  adjoining  that  in  which  the  pit  was  situate 
the  recent  footmarks  of  the  right  and  left  footsteps  of  the 
prisoner  and  also  of  the  footsteps  of  deceased,  which, 
from  the  length  and  depth  of  the  steps,  indicated  that 
there  had  been  running  and  pursuit,  and  that  the  deceased 
had  been  overtaken.  From  that  part  of  the  harrowed 
field  where  the  deceased  had  been  overtaken,  her  foot- 
steps and  those  of  the  prisoner  proceeded  together,  walk- 
ing in  a  direction  towards  the  pit  and  the  spot  where  the 
impression  was  found,  until  the  footsteps  came  within  the 
distance  of  forty  yards  from  the  pit,  when  from  the  hard- 
ness of  the  ground  they  could  be  no  longer  traced.  The 
marks  of  the  prisoner's  running  footsteps  were  also  dis- 
covered in  a  direction  leading  from  the  pit  across  the 
harrowed  field  ;  from  which  it  was  contended  that  he  had 
run  alone  in  that  direction  after  the  commission  of  the 
supposed  murder.  The  mark  of  a  man's  left  shoe  (but 
not  proved  to  have  been  the  prisoner's)  was  discovered 
near  the  edge  of  the  pit,  and  it  was  proved  that  the 


180  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

prisoner  had  worn  right  and  left  shoes.    On  the  prisoner's 
shirt  and  breeches  were  found  stains  of  blood,  and  he 
acknowledged  that  he  had  had  sexual  intercourse  with 
the  deceased,  but  alleged  that  it  had  taken  place  with 
her  own  consent.    The  defence  set  up  was  an  alibi,  which, 
notwithstanding  these  apparently  decisive  facts,  was  most 
satisfactorily  established.    The  prisoner  and  the  deceased 
had  met  at  a  dance  on  the  preceding  evening  at  a  publie- 
house,  which  they  left  together  about  midnight.     About 
three  in  the  morning  they  were  seen  talking  together  at 
a  stile  near  the  spot,  and  about  four  o'clock  the  deceased 
called  at  the  house  of  Mrs.  Butler,  at  Erdington,  where 
she  had  left  a  bundle  of  clothes  the  day  before.     Here 
she  appeared  in  good  health  and  spirits,  changed  a  part 
of  her  dress  for  some  of  the  garments  which  she  had 
left  there,  and  quitted  the  house  in  about  a  quarter  of 
an  hour.     Her  way  home  lay  across  certain  fields,  one 
of  which  had  been  newly  harrowed,  and  joined  that  in 
which  the  pit  was  situate.  The  deceased  was  successively 
seen  after  leaving  Mrs.  Butler's  house  by  several  persons, 
proceeding  alone  in  a  direction  towards  her  own  home, 
along  a  public  road  where  the  prisoner,  if  he  had  rejoined 
her,  could  have  been  seen  for  a  considerable  distance  ;  the 
last  of  such  persons  saw  her  within  a  quarter  of  an  hour 
afterwards,  that  is  to  say,  before  or  about  half-past  four. 
At  about  half-past  four,  and  not  later  than  twenty-five 
minutes  before  five,  the  accused  was  seen  by  four  persons, 
wholly  unacquainted  with  him,  walking  slowly  and  lei- 
surely along  a  lane  leading  in  an  opposite  direction  from 
the  young  woman's  course  towards  her  home.     About  a 
mile  from  the  spot  where  the  prisoner  was  seen,  he  was 
seen  by  another  witness  about  ten  minutes  before  five, 
still  walking  slowly  in  the  same  direction,  with  whom 


RULES    OF    EVIDENCE.  181 

he  stopped  and  conversed  for  a  quarter  of  an  hour,  after 
which,  at  twenty-five  minutes  past  five,  he  was  again 
seen  walking  towards  his  father's  house,  which  "was  dis- 
tant about  half  a  mile.  From  Mrs.  Butler's  house  to 
the  pit  was  a  distance  of  upwards  of  a  mile  and  a  quar- 
ter ;  and  allowing  twenty  minutes  to  enable  the  deceased 
to  walk  this  distance,  would  bring  the  time  of  her  arrival 
q,t  the  pit  to  twenty-five  minutes  before  five ;  whereas 
the  prisoner  was  first  seen,  by  four  persons  above  all 
suspicion,  at  half-past  four  or  twenty-five  minutes  before 
five,  and  the  distance  of  the  pit  from  the  place  where  he 
was  seen  was  two  miles  and  a  half.  Upon  the  hypothesis 
of  his  guilt,  the  prisoner  must  have  rejoined  the  deceased 
after  she  left  Mrs.  Butler's  house,  and  a  distance  of  up- 
wards of  three  miles  and  a  quarter  must  have  been  trav- 
ersed by  him,  accompanied  for  a  portion  of  it  by  the 
deceased,  and  the  pursuit,  the  criminal  intercourse,  the 
drowning,  and  the  deliberate  placing  of  the  deceased's 
bonnet,  shoes,  and  bundle,  must  have  taken  place  within 
twenty  or  twenty-five  minutes.  The  defence  was  set 
up  at  the  instant  of  the  prisoner's  apprehension,  which 
took  place  within  a  few  hours  after  the  discovery  of  the 
body,  and  was  maintained  without  contradiction  or  vari- 
ation before  the  coroner's  inquest  and  the  committing 
magistrates,  and  also  upon  the  trial,  and  no  inroad  was 
made  on  the  credibility  of  the  testimony  by  which  it 
was  supported.  The  various  timepieces  to  which  the 
witnesses  referred,  and  which  differed  much  from  each 
other,  were  carefully  compared  on  the  day  after  the  oc- 
currence, and  reduced  to  a  common  standard,  so  that 
there  could  be  no  doubt  of  the  real  times  as  spoken  to 
by  them.  Thus,  it  was  not  within  the  bounds  of  possi- 
bility that  the  prisoner  could  have  committed  the  crime 


182  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

imputed  to  hiin ;  nevertheless,  public  indignation  was  so 
strongly  excited  that  his  acquittal,  though  it  afforded  a 
fine  example  of  the  calm  and  unimpassioned  administra- 
tion of  justice,  occasioned  great  public  dissatisfaction. 
There  was,  nevertheless,  a  total  absence  of  all  conclusive 
evidence  of  a  corpus  delicti,  w^hich  the  jury  were  required 
to  infer  from  circumstances  of  apparent  suspicion.  The 
deceased  might  have  drowned  herself,  in  a  moment  of 
bitter  remorse,  after  parting  from  her  seducer,  and  ex- 
cited to  agonizing  reflection  by  the  sight  of  so  many  ap- 
palling marks  of  her  ruin.  It  was  possible  that  she 
might  have  sat  down  to  change  her  dancing-shoes  for 
the  boots  which  she  had  worn  the  preceding  day  and 
carried  in  her  bundle,  and  fallen  into  the  water  from  ex- 
haustion ;  for  she  had  walked  to  and  from  market  in  the 
morning,  had  exerted  herself  in  dancing  in  the  evening, 
and  had  been  wandering  all  night  in  the  fields  without 
food.  The  allegation  that  the  prisoner  had  violated  the 
deceased,  and  therefore  had  a  motive  to  destroy  her, 
was  mere  conjecture ;  and  from  the  circumstance  of  her 
having  been  out  all  night  with  the  prisoner,  with  whom 
she  was  previously  unacquainted,  and  from  the  state  of 
the  garments  which  she  took  off  at  Mrs.  Butler's,  as 
compared  with  those  for  which  she  exchanged  them,  it 
was  clear  that  the  sexual  intercourse  had  taken  place 
before  she  called  there,  at  which  time  she  made  no  com- 
plaint, but  appeared  composed  and  cheerful.  Again, 
the  inference  contended  for,  from  the  state  of  the  grass, 
with  drops  of  blood  upon  it  where  the  dew  had  not  been 
disturbed,  was  equally  groundless ;  for  there  was  no 
proof  that  the  dew  had  not  been  deposited  after  the 
drops  of  blood ;  and  it  clearly  appeared  that  the  foot- 
steps of  the  prisoner  and  the  deceased  could  not  be  traced 


RULES   OF   EVIDENCE.  183 

oil  other  parts  of  the  grass  where,  beyond  all  doubt,  they 
iiad  been  together  in  the  course  of  the  night.  Now, 
suppose  that  the  alibi  had  been  incapable  of  satisfactory 
proof,  that  the  prisoner  had  not  been  seen  after  parting 
from  the  deceased,  and  that  the  inconclusiveness  of  the 
inference  suggested  from  the  discovery  of  drops  of  blood 
on  the  grass,  where  there  were  no  footmarks,  had  not 
been  manifested  by  the  absence  of  those  marks  in  other 
places  where  they  had  unquestionably  been  together  in 
the  night,  the  guilt  of  the  prisoner  would  have  been  con- 
sidered indubitable,  and  his  execution  certain ;  and  yet 
these  exculpatory  circumstances  were  entirely  collateral, 
and  independent  of  the  facts  which  were  supposed  to  be 
clearly  indicative  of  guilt.* 

Rule  2. — The  burden  of  p^oof  is  ahvays  on  the  'party 
who  asserts  the  existence  of  any  fact  tvhich  infers  legal  ac- 
countability} This  is  a  universal  rule  of  jurisprudence, 
founded  upon  evident  principles  of  justice ;  and  it  is  a 
necessary  consequence,  that  the  affirmant  party  is  not 
absolved  from  its  obligation  because  of  the  difficulty 
w^hich  may  attend  its  application.  No  man  can  be  justly 
deprived  of  his  social  rights  but  upon  proof  that  he  has 
committed  some  act  which  legally  involves  the  forfeiture 
of  them.  The  law  respects  the  status  in  quo,  and  regards 
every  man  as  legally  innocent  until  the  contrary  be 
proved.  To  prove  a  negative  is  in  most  cases  difficult, 
in  many  impossible.  Criminality,  therefore,  is  never  to 
be  presumed.     But,  nevertheless,  the  operation  of  this 

*  The  friends  of  the  deceased  brought  an  appeal  of  death,  in  which  the  defendant 
tendered  wager  of  battle,  and  the  proceedings  led  to  the  abolition,  by  St.  59  G.  Ill, 
c.  46,  of  that  barbarous  relic  of  feudal  times.  See  Ashford  v.  Thornton,  4  B.  &  Aid. 
405;  Short-hand  Rep.  and  Observations  upon  the  case  of  Abraham  Thornton,  by 
Edward  Holroyd,  Esq.,  where  the  judge's  notes  of  the  evidence  are  given. 

"  1  Starkie's  L.  of  Ev.  162;  1  Greenleaf's  L.  of  Ev.  c.  3. 


184  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

rule  may,  to  a  certain  extent,  be  modified  by  circum- 
stances which  create  a  counter-obligation,  and  shift  the 
onus  prohandi.  Lord  Brougham  said  that  the  burden  of 
proof  often  shifts  about  from  one  party  to  the  other  in 
the  progress  of  a  cause,  according  as  the  evidence  raises 
a  presumption  one  way  or  the  other.''  It  follows,  from 
the  very  nature  of  circumstantial  evidence,  that,  in  draw- 
ing an  inference  or  conclusion  as  to  the  existence  of  a 
particular  fact  from  other  facts  that  are  proved,  regard 
must  always  be  had  to  the  nature  of  the  particular  case, 
and  the  facility  that  appears  to  be  afforded,  either  of  ex- 
planation or  contradiction.^  Lord  Ellenborough  said  that 
no  person  accused  of  crime  is  bound  to  oifer  any  explan- 
ation of  his  conduct,  or  of  circumstances  of  suspicion 
which  attach  to  him;  but,  nevertheless,  if  he  refuse  to  do 
so,  where  a  strong  prima  facie  case  has  been  made  out,  and 
when  it  is  in  his  own  power  to  offer  evidence,  if  such  ex- 
ist, in  explanation  of  such  suspicious  appearances,  which 
would  show  them  to  be  fallacious  and  explicable  in  con- 
sistency with  his  innocence,  it  is  a  reasonable  and  justifi- 
able conclusion  that  he  refrains  from  doing  so  only  from 
the  conviction  that  the  evidence  so  suppressed  or  not 
adduced  would  operate  adversely  to  his  interest.''  It  is, 
therefore,  a  qualification  of  the  rule  in  question,  that  in 
every  case  the  onus  prohandi  lies  on  the  person  who  is 
interested  to  support  his  case  by  a  particular  fact,  which 
lies  more  particularly  within  his  own  knowledge,  or  of 
which  he  is  supposed  to  be  cognizant.  This,  indeed,  is  not 
allowed  to  supply  the  want  of  necessary  proof,  whether 
direct  or  presumptive,  against  a  defendant,  of  the  crime 


*  Wareing  v.  Wareing,  6  Moore's  P.  C.  Rep.  355. 

b  Per  Lord  Chief  Justice  Abbott  in  Rex  v.  Burdett,  4  B.  &  Aid.  161. 

"  Rex  V.  Cochrane,  Gurney's  Rep. 


RULES    OF    EVIDENCE.  iSo 

with  which  he  is  charged  ;  but  when  such  proof  has  been 
given,  it  is  a  rule  to  be  applied  in  considering  the  weight 
of  the  evidence  against  him,  whether  direct  or  presump- 
tive, when  it  is  unopposed,  unrebutted,  or  not  weakened 
by  contrary  evidence,  which  it  would  be  in  the  defend- 
ant's power  to  produce,  if  the  fact  directly  or  presump- 
tively proved  were  not  true."  It  has  been  well  observed, 
that  in  such  cases  we  have  something  like  an  admission 
that  the  presumption  is  just.^  "  In  drawing  an  inference 
or  conclusion,  regard  must  always  be  had,"  said  the  Lord 
Chief  Justice  Abbott,°  "  to  the  nature  of  the  particular 
case,  and  the  facility  that  appears  to  be  afforded  either  of 
explanation  or  of  contradiction.  No  person  is  to  be  re- 
quired to  explain  or  contradict,  until  enough  has  been 
proved  to  warrant  a  reasonable  and  just  conclusion  against 
him,  in  the  absence  of  explanation  or  contradiction  ;  but 
when  such  proof  has  been  given,  and  the  nature  of  the 
case  is  such  as  to  admit  of  explanation  or  contradiction, 
if  the  conclusion  to  which  the  proof  tends  be  untrue,  and 
the  accused  offers  no  explanation  or  contradiction,  can 
human  reason  do  otherwise  than  adopt  the  conclusion  to 
which  the  proof  tends  ?  The  premises  may  lead  more  or 
less  strongly  to  the  conclusion,  and  care  must  be  taken 
not  to  draw  the  conclusion  hastily ;  but  in  matters  th;it 
concern  the  conduct  of  men,  the  certainty  of  mathemati- 
cal evidence  cannot  be  required  or  expected ;  and  it  is  one 
of  the  peculiar  advantages  of  our  jurisprudence,  that  the 
conclusion  is  to  be  drawn  by  the  unanimous  judgment 
and  conscience  of  twelve  men  conversant  with  the  affairs 


»  Per  Mr.  Justice  Holroyd  in  Rex  v.  Burdett,  4  B.  &  Aid.  140. 

•>  Per  Mr.  Justice  Best,  ib.  122. 

*  Ibid.  161 ;  and  see  the  language  of  Mr.  .Justice  Bayley,  ib.  150. 


186  WILLS    ON   CIRCUMSTANTIAL    EVIDENCE. 

and  business  of  life,  and  who  know  that  when  reasonable 
doubt  is  entertained,  it  is  their  duty  to  acquit ;  and  not 
of  one  or  more  lawyers,  whose  habits  might  be  suspected 
of  leading  them  to  the  indulgence  of  too  much  subtlety 
and  refinement."  To  the  same  effect  Lord  Chief  Justice 
Tindal,  on  a  trial  for  high  treason,  said,  that  "  the  offence 
charged  against  the  prisoner  must  be  proved  by  those 
who  make  the  charge.  The  proof  of  the  case  against 
the  prisoner  must  depend  for  its  support  not  upon  the 
absence  or  want  of  any  explanation  on  the  part  of  the 
prisoner  himself,  but  upon  the  positive  affirmative  evi- 
dence of  the  guilt  that  is  given  by  the  crown.  It  is  not, 
however,  an  unreasonable  thing,"  said  the  learned  judge, 
''  and  it  daily  occurs  in  investigations,  both  civil  and 
criminal,  that  if  there  is  a  certain  appearance  made  out 
against  a  party,  if  he  is  involved  by  the  evidence  in  a 
state  of  considerable  suspicion,  he  is  called  upon,  for  his 
own  sake  and  his  own  safety,  to  state  and  bring  forward 
the  circumstances,  whatever  they  may  be,  which  might 
reconcile  such  suspicious  appearances  with  perfect  inno- 
cence.* But  this  doctrine,  it  has  been  well  observed,  is 
to  be  cautiously  applied,  and  only  in  cases  where  it  is 
manifest  that  proofs  are  in  the  power  of  the  accused,  not 
accessible  by  the  prosecution."  ^ 

It  is  a  necessary  consequence  of  this  rule,  rather  than 
a  substantive  rule,  that  the  corpus  delicti  must  be  clearly 
proved  before  any  effect  is  attached  to  circumstances  sup- 
posed to  be  inculpatory  of  a  particular  individual ;  but 

*  Reg.  V.  Frost,  Moninoutli  Sp.  Comm.  Jan.  1840,  Gurney's  Report,  689 ;  and  see 
the  language  of  Lord  Ellenborough  in  Rex  v.  Despard,  28  St.  Tr.  521 ;  and  in  Rex 
V.  Watson,  32  ih.  583 ;  and  that  of  Le  Blanc,  J.,  in  Rex  v.  Mellor  and  others,  31  St. 
Tr.  1032. 

^  Per  Shaw,  C.  J.,  in  Webster's  case,  ut  siqjra,  467. 


RULES   OF    EVIDENCE.  187 

this  is  a  branch  of  the  subject  of  so  much  importance 
Hiid  of  such  comprehensive  extent,  as  to  require  consid- 
eration in  a  separate  chapter. 

Rule  3. — In  all  cases,  whether  of  direct  or  circumstan- 
tial evidence,  the  best  evidence  must  he  adduced  which  the 
nature  of  the  case  admits.  The  suppression  or  non-pi'O- 
duction  of  pertinent  and  cogent  evidence  necessarily 
raises  a  strong  presumption  against  the  party  who  with- 
holds such  evidence  when  he  has  it  in  his  power  to  pro- 
duce it;  of  which  some  interesting  exemplifications 
appear  in  other  parts  of  this  Essay."  This  rule  applies 
a  fortiori  to  circumstantial  evidence,  a  kind  of  proof 
which,  for  reasons  which  have  been  already  urged,  is  in- 
herently inferior  to  direct  and  positive  testimony ;  and, 
therefore,  whenever  such  evidence  is  capable  of  being- 
adduced,  the  very  attempt  to  substitute  a  description  of 
evidence  not  of  the  same  degree  of  force,  necessarily 
creates  a  suspicion  that  it  is  withheld  from  corrupt  and 
sinister  motives.^  Nor  is  the  application  of  the  rule 
confined  to  the  proof  of  the  principal  fact ;  it  is  "  the 
master  rule  which  governs  all  the  subordinate  rules  f'"^ 
and  applies  alike  to  the  proof  of  every  individual  con- 
stituent fact,  whether  principal  or  subordinate.  Thus, 
in  a  trial  for  murder,  Mr.  Baron  Maule  refused  to  receive 
evidence  of  the  contents  of  a  coffin-plate  in  order  to  es- 
tablish the  identity  of  the  deceased,  on  the  ground  that, 
being  removable,  it  might  have  been  produced,  and  there 
being  no  other  case  of  identity,  stopped  the  case.*^  The 
rule  is,  however,  necessarily  relaxed,  where  its  applica- 
tion becomes  impracticable  by  the  wrongful  act  of  the 

a  See  ante,  Ch.  Ill,  ss.  5,  7. 

^  See  ante,  31. 

'^  2  Burke's  Works,  ut  supra,  618 ;  Mittermaier,  ut  supra,  ch.  57. 

■i  Reg.  V.  Edge,  Chester  Spr.  Ass.  18-12. 


188  WILLS    ON   CIRCUMSTANTIAL   EVIDENCE. 

party  who  would  otherwise  be  entitled  to  claim  its  pro- 
tection ;  as  where  a  witness  is  kept  out  of  the  way  by  or 
on  his  behalf,*  or  a  deed  or  other  instrument  in  his  pos- 
session, which  he  refuses,  after  notice,  to  produce.^ 

Considering,  moreover,  the  inherent  infirmity  of  hu- 
man memory,  in  the  fair  construction  and  application  of 
this  rule,  evidence  ought  in  all  criminal  cases,  and  a  for- 
tiori in  cases  of  circumstantial  evidence,  be  received  with 
distrust,  wherever  any  considerable  time  has  elapsed 
since  the  commission  of  the  alleged  offence.  The  justice 
and  efficacy  of  punishment,  and  more  especially  of  capital 
punishment,  inflicted  after  the  lapse  of  any  considerable 
interval,  at  least  where  the  offender  has  not  withdrawn 
himself  from  the  reach  of  justice,  are  more  than  ques- 
tionable.'' An  unavoidable  consequence  of  great  delay 
is,  that  the  party  is  deprived  of  the  means  of  vindicating 
his  innocence,  or  of  proving  the  attendant  circumstances 
of  extenuation ;  the  crime  itself  becomes  forgotten,  or  is 
remembered  but  as  a  matter  of  tradition,  and  the  of- 
fender may  have  become  a  different  moral  being  :  in  such 
circumstances  punishment  can  seldom,  perhaps  never, 
be  efficacious  for  the  purpose  of  example.  On  these 
accounts  judges  and  juries  are  now  always  reluctant  to 
convict  parties  charged  with  offences  committed  long 
previously. 

Rule  4. — In  order  to  Justify  the  inferences  of  guilt, 

a  Hawk,  P.  C.  Bk.  2,  c.  46,  s.  15;  R.  v.  Guttridge,  9  C.  &  P.  471 ;  Reg.  w.  Scaife, 
20  L.  J.  M.  C.  229. 

b  Rex  V.  Hunter,  3  C.  &  P.  491 ;  4  ib.  128;  Rex  v.  Haworth,  4  C.  &  P.  254 ;  and 
see  ante,  Ch.  Ill,  s.  7. 

'  See  Rex  v.  Home,  executed  at  Nottingham  in  1759,  for  the  murder  of  his  natu- 
ral child  forty  years  before,  4  Gel.  Trials,  ^96;  and  Rex  v.  Wall,  28  St.  Tr.  51,  whose 
execution  took  place  after  the  lapse  of  twenty  years  from  the  commission  of  the 
offence;  and  see  the  strictures  of  Lord  Campbell  on  the  case,  3  Lives  of  the  C.  Jus- 
tices, 147;  and  Rex  c  Roper,  Leicester  Sum.  Ass.  1836,  for  a  murder  committed 
thirty-four  years  before,  A.  R.  1836. 


RULES   OF   EVIDENCE.  189 

the  inculpatory/  facts  must  be  incompatible  with  the  inno- 
cence of  the  accused,  and  incapable  of  explanation  upon 
any  other  reasonable  hypothesis   than  that  of  his  guilt. 
This  is  the  fundamental  rule,  the  experimentum  crucis  by 
which  the  relevancy  and  effect  of  circumstantial  evidence 
must  be  estimated.     The  awards  of  penal  law  can  be 
justified  only  when  the  strength  of  our  convictions  is 
equivalent  to  moral  certainty ;  which,  as  we  have  seen, 
is  that  state  of  the  judgment,  grounded  upon  an  adequate 
amount  of  appropriate  evidence,  which  induces  a  man  of 
sound  mind  to  act  without  hesitation  in  the  most  im- 
portant concerns  of  human  life.     In  cases  of  direct  credi- 
ble evidence,  that  degree  of  assurance  immediately  and 
necessarily  ensues ;  but  in  estimating  the  effect  of  cir- 
cumstantial evidence,  there  is  of  necessity  an  ulterior 
intellectual  process  of  inference  which  constitutes  an 
essential  element  of  moral  certainty.     The  most  import- 
ant part  of  the  inductive  process,  especially  in  moral  in- 
quiries, is  the  correct  exercise  of  the  judgment  in  draw- 
ing the  proper  inference  from  the  known  to  the  unknown, 
from  the  facts  proved  to  the  factum  probandum.  A  num- 
ber of  secondary  facts  of  an  inculpatory  moral  aspect 
being  given,  the  problem  is,  to  discover  their  causal 
moral  source,  not  by  arbitrary  assumption,  but  by  the 
application  of  the  principles  of  experience  in  relation  to 
the  immutable  laws  of  human  nature  and  conduct.    It  is 
not  enough,  however,  that  a  particular  hypothesis  will 
explain  all  the  phenomena ;  nothing  must  be  inferred, 
because,  if  true,  it  would  account  for  the  facts ;  and  if 
the  circumstances  are  equally  capable  of  solution  upon 
any  other  reasonable  hypothesis,  it  is  manifest  that  their 
true  moral  cause  is  not  exclusively  ascertained,  but  re- 
mains in  uncertainty ;  and  they  must  therefore  be  dis- 


190  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

carded  as  conclusive  presumptions  of  guilt.  Every  other 
reasonable  supposition  by  which  the  facts  may  be  ex- 
plained consistently  with  the  hypothesis  of  innocence 
must  therefore  be  rigorously  examined  and  successively 
eliminated ;  and  only  when  no  other  supposition  will 
reasonably  account  for  all  the  conditions  of  the  case,  can 
the  conclusion  of  guilt  be  legitimately  adopted.''  In  a 
late  case  before  the  Court  of  Justiciary  at  Edinburgh,  the 
Lord  Justice  Clerk  Cockburn  said  that  the  matter  might 
remain  most  mysterious,  wholly  unexplained ;  they  might 
not  be  able  to  account  for  it  on  any  other  supposition 
than  that  of  the  prisoner's  guilt ;  but  that  still  that  sup- 
position or  inference  might  not  be  a  ground  on  which  they 
could  safely  and  satisfactorily  rest  their  verdict  against 
her.^  But  nevertheless  it  seems  hardly  possible  to  con- 
ceive of  such  a  state  of  facts.  If,  however,  the  hypothe- 
sis fulfills  the  required  conditions,  the  conclusion  is  no 
longer  a  gratuitous  assumption,  but  becomes,  as  it  were, 
part  of  the  induction ;  and  an  additional  test  is  obtained, 
by  which,  as  by  the  application  of  a  theorem  of  verifica- 
tion, the  conclusion  may  be  tested,  and,  if  true,  corrobo- 
rated and  confirmed ;  since,  if  it  be  true,  it  must  harmo- 
nize with,  and  satisfactorily  account  for,  all  the  facts,  to 
the  exclusion  of  every  other  reasonable  hypothesis.''  In 
accordance  with  these  sound  principles  of  reasoning  and 
inference.  Lord  Chief  Baron  Macdonald  said  that  he  had 
ever  understood  the  rule  as  to  circumstantial  evidence  to 
be  that  where  the  circumstances  are  true,  where  they  are 
well  connected,  where  they  support  each  other  in  a  clear 
and  lucid  manner,  and  where  they  cannot  reasonably  be 

*  See  Mittermaier,  «/  supra,  ch.  59. 

*>  Reg.  ».  Madeleine  Smith,  Rep.,  nt  eiipva,  303. 

'  See  Mittermaier,  itt  supra,  ch.  59. 


RULES   OF    EVIDENCE.  191 

acconnted  for  unless  the  charge  be  true  that  is  imputed 
to  the  prisoner,  then  the  jury  were  justified  in  convict- 
ing upon  that  evidence.'*  On  another  occasion  the  same 
learned  judge  said  that  the  nature  of  circumstantial 
evidence  was  this,  that  the  jury  must  be  satisfied  that 
there  is  no  rational  mode  of  accounting  for  the  circum- 
stances, but  upon  the  supposition  that  the  prisoner  is 
guilty.^  Mr.  Baron  Alderson,  with  more  complete  exact- 
ness, said  that  to  enable  the  jury  to  bring  in  a  verdict  of 
guilty,  it  was  necessary,  not  only  that  it  should  be  a  ra- 
tional conviction,  but  that  it  should  be  the  only  rational 
conviction  which  the  circumstances  would  enable  them 
to  draw.°  In  Plumphreys'  case.  Lord  Meadowbank  said 
to  the  jury,  "  Your  duty  is  to  consider  what  is  the 
reasonable  inference  to  be  drawn  from  the  whole  circum- 
stances ;  in  short,  whether  it  is  possible  to  explain  the 
circumstances  upon  grounds  consistent  with  the  inno- 
cence to  the  panel,  or  whether,  on  the  contrary,  they  do 
not  necessarily  lead  to  a  result  directly  the  reverse." '^ 

It  follows,  as  a  consequence  of  this  rule,  that  Avherever 
several  persons  are  jointly  charged  with  any  offence,  joint 
complicity  must  be  proved.  In  the  case  of  the  two  Man- 
nings their  counsel  severally  endeavored  to  throw  the 
guilt  exclusively  on  the  other ;  and  Lord  C.  B.  Pollock 
told  the  jury  that  if  they  thought  one  of  the  prisoners 
was  guilty,  but  could  not  possibly  decide  which  was  the 
guilty  party,  they  might  be  reduced  to  the  alternative  of 
returning  a  verdict  of  not  guilty  as  to  both  ;  but,  that  if. 
looking  at  the  whole  transaction,  they  came  to  the  con- 
clusion that  both  must,  according  to  the  ordinary  course 

*  Eex  17.  Smith,  for  arson,  tit  supra,  p.  30. 
*>  Kex  V.  Patch,  Surrey  Spr.  Ass.  1805. 
■:  Rex  V.  Hodges,  2  Lewin's  C.  C.  227. 
^  Swinton's  Rep.,  iit  avpra,  353. 


192  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

of  human  affairs,  have  been  concerned  in  the  murder,  it 
would  be  their  duty  to  find  both  the  prisoners  guilty.'' 

A  learned  writer  thinks  that  almost  all  writers  have 
attempted  to  estimate  the  force  of  evidence  upon  a  wrong 
principle  ;  that  the  true  principle  is  to  estimate  its  value 
entirely  by  the  effect  which  it  does  in  fact  produce  upon 
the  minds  of  those  who  hear  it,  and  that  the  value  of 
evidence  is  measured  exactly  by  the  state  of  mind  which 
it  produces,  as  a  force  is  measured  by  the  weight  which 
it  will  lift.''  But,  not  to  dwell  upon  the  fallacy  of  every 
attempt  to  compare  the  conclusion  of  moral  reasoning 
with  the  constrained  and  inevitable  consequence  of  me- 
chanical force,  this  would  be  to. give  up  a  safe,  practical, 
and  philosophic  test,  the  validity  and  sufficiency  of  which 
are  recognized  in  every  other  branch  of  philosophical 
and  scientific  research,  for  an  indeterminate  and  em- 
pirical result  incapable  of  independent  verification,  and 
would  virtually  justify  the  most  erroneous  determina- 
tions of  the  tribunals. 

Rule  5. — If  there  he  any  reasonable  doubt  of  the  guilt 
of  the  accused^  he  is  entitled,  as  of  right,  to  be  acquitted. 
In  other  words,  there  must  be  no  uncertainty  as  to  the 
reality  of  the  connection  of  the  circumstances  of  evidence 
with  ihoifadum  'probandum,  or  as  to  the  sufficiency  of  the 
proof  of  the  corpus  delicti,  or,  supposing  those  points  to 
be  satisfactorily  established,  as  to  the  personal  complicity 
of  the  accused.  This  is  in  strictness  hardly  so  much  a 
distinct  rule  of  evidence  as  a  consequence  naturally  flow- 
ing from,  and  virtually  comprehended  in,  the  preceding 
rules.     Indeed,  it  is  more  properly  a  test  of  the  right  ap- 


■  Keg.  V.  Manning  and  wife,  C.  C.  C.  Oct.,  1849. 

*  See  an  able  and  interesting  essay  on  tlie  characteristics  of  English  Law,  Camb. 
Ess.  1857,  p.  27. 


RULES   OF   EVIDENCE.  193 

plication  of  those  rules  to  the  facts  of  the  particular  case. 
The  necessity  and  value  of  such  test  is  manifest  from 
the  consideration  of  the  numerous  fallacies  incidental  to 
the  formation  of  the  judgment  on  indirect  evidence  and 
contingent  probabilities,  and  from  the  impossibility  in 
air  cases  of  drawing  the  line  between  moral  certainty 
and  doubt.  In  questions  of  civil  right  the  magistrate  is 
obliged  to  decide  according  to  the  greatest  amount  of 
probability  in  favor  of  one  or  the  other  of  the  litigant 
parties ;  but  where  life  or  liberty  are  in  the  balance,  it 
is  neither  just  nor  necessary  that  the  accused  should  be 
convicted  but  upon  conclusive  evidence.  While  it  is 
certain  that  circumstantial  evidence  is  frequently  most 
convincing  and  satisfactory,  it  must  never  be  forgotten, 
as  was  remarked  by  that  wise  and  upright  magistrate, 
Sir  Matthew  Hale,  that  "  persons  really  innocent  may 
be  entangled  under  such  presumptions,  that  many  times 
carry  great  probabilities  of  guilt;"''  wherefore,  as  he 
justly  concludes,  "  this  kind  of  evidence  must  be  very 
warily  pressed."  Many  adverse  appearances  may  be 
outweighed  by  a  single  favorable  one,  and  all  the  prob- 
abilities of  the  case  may  not  be  before  the  court.  The 
Lord  Justice  Clerk  Cockburn,  in  his  charge  in  the  case 
of  Madeleine  Smith,  before  mentioned,  said,  "  I  wish 
you  to  keep  in  mind  that  although  you  may  not  be  satis- 
fied with  any  of  the  theories  that  have  been  propounded 
on  behalf  of  the  prisoner,  still,  nevertheless,  the  case  for 
the  prosecution  may  be  radically  defective  in  evidence."  *" 
It  is  safer,  therefore,  as  wisely  said  by  Sir  Matthew 
Hale,  to  err  in  acquitting  than  in  convicting,  and  better 
that  many  guilty  persons  should  escape,  than  that  one 

a  2  p.  C.  ch.  39 ;  see  Rex  v.  Thornton,  ante,  p.  178. 
*>  Report,  ut  supra,  281. 

13 


194  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

innocent  man  should  suffer."  Paley  controverts  the 
maxim,  and  urges  that  "  he  who  falls  by  a  mistaken 
sentence  may  be  considered  as  falling  for  his  country, 
while  he  suffers  under  the  operation  of  those  rules  by 
the  general  effect  and  tendency  of  which  the  welfare  of 
the  community  is  maintained  and  upheld." ''  There  is 
no  judicial  enormity  which  may  not  be  palliated  or  justi- 
fied under  color  of  this  execrable  doctrine,  which  is  cal- 
culated to  confound  all  moral  and  legal  distinctions ;  its 
sophistry,  absurdity,  and  injustice  have  been  unanswer- 
ably exposed  by  one  of  the  ablest  of  lawyers  and  most 
upright  of  men.*"  Justice  never  requires  the  sacrifice  of 
a  victim ;  an  erroneous  sentence  is  calculated  to  produce 
incalculable  and  irreparable  mischief  to  individuals,  to 
destroy  all  confidence  in  the  justice  and  integrity  of  the 
tribunals,  and  to  introduce  an  alarming  train  of  social 
evils  as  the  inevitable  result.  Every  consideration  of 
truth,  justice,  and  prudence  requires,  therefore,  that 
where  the  guilt  of  the  accused  is  not  incontrovertibly 
established,  however  suspicious  his  conduct  may  have 
been,  he  shall  be  acquitted  of  legal  accountability.  No 
rule  of  procedure  is  more  firmly  established,  as  one  of  • 
the  great  safeguards  of  truth  and  innocence,  than  the 
rule  in  question;  and  it  is  the  invariable  practice  of 
judges  to  advise  juries  to  acquit  whenever  they  enter- 
tain any  fair  and  reasonable  doubt.  The  doubt,  how- 
ever, must  be  not  a  trivial  one,  such  as  speculative  in- 
genuity may  raise,  but  a  conscientious  one,  which  may 
operate  upon  the  mind  of  a  rational  man  acquainted  with 
the  affairs  of  life.^    "  If,"  said  Lord  Chief  Baron  Pollock 

a  2  p.  C.  c.  39. 

"  Mor.  and  Pol.  Phil.  b.  vi,  ch.  9. 

«  Romilly's  Obs.  on  the  C.  L.  of  England,  72;  Best  on  Pres.  292. 

^  Per  Mr.  Baron  Parke  in  Reg.  v.  Tawell,  xit  supra. 


RULES   OF   EVIDENCE.  195 

to  the  jury,  in  a  late  case,  "  the  conclusion  to  which  you 
are  conducted  be  that  there  is  that  degree  of  certainty 
in  the  case  that  you  would  act  upon  it  in  your  own  grave 
and  important  concerns,  that  is  the  degree  of  certainty 
which  the  law  requires,  and  which  will  justify  you  in 
returning  a  verdict  of  guilty." '' 

The  rules  of  evidence,  as  founded  on  reason  and  con- 
secrated in  the  judgments  of  the  courts,  constitute  the 
best  means  for  discovering  truth,  and  are  an  integral 
part  of  our  legal  system,  essential  alike  for  private  and 
social  security.  Nevertheless,  language  of  most  danger- 
ous tendency  in  regard  to  them  has  occasionally  fallen 
from  learned  judges,  which  implies  that  they  may  be 
modified,  according  to  the  enormity  of  the  crime,  or  the 
weightiness  of  the  consequences  which  attach  to  convic- 
tion. Lord  Finch,  afterwards  Lord  Chancellor  Notting- 
ham, on  the  trial  of  Lord  Cornwallis,  said,  "  The  fouler 
the  crime  is,  the  clearer  and  the  plainer  ought  the  proof 
to  be."  ^  "  The  more  flagrant  the  crime  is,"  said  Mr. 
Baron  Legge,  "  the  more  clearly  and  satisfactorily  you 
will  expect  that  it  shall  be  made  out  to  you."  °  Mr. 
Justice  Holroyd  is  represented  to  have  said  that  "  the 
greater  the  crime,  the  stronger  is  the  proof  required  for 
conviction."  '^ 

Upon  a  trial  for  high  treason.  Lord  Chief  Justice  Dal- 
las, after  adverting  to  the  extreme  guilt  of  the  crime,  as 
seeking  the  subversion  of  the  established  government. 


*  Reg.  V.  Manning  and  Wife,  C.  C.  C,  Oct.  1S19;  and  see  the  language  of  Mr. 
Justice  Parke  in  Doe  d.  Pattershall  v.  Turford,  3  B.  &  Ad.  897;  of  Lord  Meadow- 
bank  in  Reg.  v.  Humphreys,  Swinton's  Rep.  353 ;  and  of  C.  J.  Shaw  in  Prof.  Web- 
ster's Case,  Bemis's  Rep.  470. 

*>  7  St.  Tr.  149 ;  and  see  Rex  v.  Crossley,  26  St.  Tr.  218. 

0  Rex  V.  Blandy,  18  St.  Tr.  1186. 

•J  Rex  V.  Hobson,  1  Lewin's  C.  C.  261. 


196  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

and  aiming  at  the  property,  the  liberty,  and  the  lives  of 
all,  said,  "  Still,  however,  nothing  will  depend  upon  the 
comparative  magnitude  of  the  offence ;  for  be  it  great  or 
small,  every  man  standing  in  the  situation  in  which  the 
prisoner  is  placed  is  entitled  to  have  the  charge  against 
him  clearly  and  satisfactorily  proved ;  with  only  this 
difference  (and  I  make  the  observation  at  the  outset,  as 
being  in  favor  of  the  prisoner),  that  in  proportion  to  the 
magnitude  of  the  offence,  and  the  consequences  which 
result  from  his  conviction,  ought  the  proof  to  be  clear 
and  satisfactory."  '^  In  the  case  of  the  Glasgow  cotton- 
spinners  for  conspiracy  and  murder,  the  learned  Lord 
Justice  Clerk  Boyle  said,  that  the  magnitude  of  the 
charge  ought  to  have  no  other  effect  than  rendering  it 
more  necessary  that  the  jury  should  be  fully  satisfied 
that  the  evidence  is  clear  upon  the  subject.''  The  dis- 
tinction was  more  broadly  laid  down  by  the  late  Lord 
Justice  Clerk  Cockburn,  in  Madeleine  Smith's  case.  "In 
drawing  an  inference,"  said  the  learned  judge,  "you 
must  always  look  to  the  import  and  character  of  the  in- 
ference which  you  are  asked  to  draw ;"  and  the  same 
distinction  pervades  the  whole  of  the  charge  in  that 
celebrated  case. 

These  dicta  are  opposed  to  the  principles  of  reason, 
and  inconsistent  with  all  established  rules  of  law.  No 
legal  doctrine  is  more  firmly  settled  than  that  there  is  no 
difference  between  the  rules  of  evidence  in  civil  and  crim- 
inal cases ;  but  if  under  any  circumstances  they  may  be 
relaxed  according  to  notions  of  supposed  expediency, 
they  cease  to  be,  in  any  correct  and  intelligible  sense, 
rules  for  the  discovery  of  truth,  and  the  most  valued 

a  Rex  V.  Ings,  33  St.  Tr.  1135. 

*>  Reg.  V.  Hanson  and  others,  Court  of  Justiciary,  1838 :  Short-hand  Rep.  366. 


RULES   OF   EVIDENCE.  197 

rights  of  civilized  men  become  the  sport  of  chance.  The 
logical  consequences  of  any  such  power  of  relaxation 
would  be,  that  the  rules  of  evidence  are  radically  differ- 
ent in  civil  and  criminal  cases,  and  different  even  in 
criminal  cases,  as  they  are  applied  to  particular  classes 
of  crime,  according  to  some  arbitrary  and  imaginary 
measure  for  estimating  their  relative  enormity  and  pen- 
alty. Is  the  dictum,  it  may  be  asked,  to  be  restricted 
to  cases  where  the  consequence  of  conviction  may  be 
loss  of  life  ?  Is  it  to  be  repudiated  when  it  may  be  fol- 
lowed by  the  inferior  penalties  of  transportation  or  im- 
prisonment ?  Is  it  to  be  applied  or  rejected  in  api^lica- 
tion  to  the  numerous  cases,  civil  as  well  as  criminal, 
where  physical  and  social  consequences  may  follow, 
which,  though  of  a  different  kind,  may  be  scarcely  less 
fatal  to  the  individual  than  loss  of  liberty,  or  even  of 
life  itself  ?  And  if  the  maxims  of  evidence  may  be  made 
more  stringent  in  one  direction,  there  is  no  reason  why 
they  may  not  be  relaxed  in  another,  according  to  the 
greater  difficulties  incidental  to  the  proof  of  the  more 
atrocious  and  dangerous  forms  of  crime,  as  some  writers 
on  the  civil  law  have  actually  maintained.  A  late  noble 
and  distinguished  historical  writer,  whose  opinions  on 
every  question  of  legal  science  or  of  constitutional  prin- 
ciple, are  eminently  entitled  to  respect,  with  the  strictest 
philosophical  truth,  and  with  great  felicity  of  illustration, 
has  thus  denounced  the  doctrine  under  review :  "  The 
rules  of  evidence  no  more  depend  on  the  magnitude  of 
the  interests  at  stake  than  the  rules  of  arithmetic.  We 
might  as  well  say  that  we  have  a  greater  chance  of 
throwing  a  size  when  we  are  playing  for  a  penny,  than 
when  we  are  playing  for  a  thousand  pounds,  as  that  a 
form  of  trial  which  is  sufficient  for  the  purposes  of  jus- 


198  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

tice,  in  a  matter  of  liberty  and  property,  is  insufficient 
in  a  matter  affecting  life.  Nay,  if  a  mode  of  proceeding 
be  too  lax  for  capital  cases,  it  is,  a  priori,  too  lax  for  all 
others ;  for  in  capital  cases  the  principles  of  human  na- 
ture will  always  afford  considerable  security.  No  judge 
is  so  cruel  as  he  who  indemnifies  himself  for  scrupulosity 
in  cases  of  blood,  by  license  in  affairs  of  smaller  import- 
ance. The  difference  in  tale  on  the  one  side  far  more 
than  makes  up  for  the  difference  in  weight  on  the  other."  * 

»  1  Macaulay's  Ess.  143,  1st  ed. 


CHAPTER  VIT. 
PROOF  OF  THE  CORPUS  DELICTI. 


Section  1. 
general  doctrine  as  to  the  proof  of  the  corpus  delicti. 

Every  allegation  of  the  commission  of  legal  crime  in- 
volves the  establishment  of  two  distinct  propositions ; 
namely,  that  an  act  has  been  committed  from  which 
legal  responsibility  arises,  and  that  the  guilt  of  such  act 
attaches  to  a  particular  individual,  though  the  evidence 
is  not  always  separable  into  distinct  parts,  or  applicable 
to  each  of  those  propositions. 

Such  a  complication  of  difficulties  occasionally  attends 
the  proof  of  crime,  and  so  many  cases  have  occurred  of 
convictions  for  alleged  offences  which  have  never  existed, 
that  it  is  a  fundamental  and  inflexible  rule  of  legal  pro- 
cedure, of  universal  obligation,  that  no  person  shall  be 
required  to  answer,  or  be  involved  in  the  consequences 
of  guilt  without  satisfactory  proof  of  the  corpus  delicti, 
either  by  direct  evidence,  or  by  cogent  and  irresistible 
grounds  of  presumption.*  If  it  be  objected  that  rigorous 
proof  of  the  corpus  delicti  is  sometimes  unattainable,  and 
that  the  effect  of  exacting  it  must  be  that  crimes  will 
occasionally  pass  unpunished,  it  must  be  admitted  that 
such  may  possibly  be  the  result ;    but  it  is  answered 

a  Rex  V.  Burdett,  4  B.  &  Aid.  123. 


200  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

that,  where  there  is  no  proof,  or,  which  is  the  same  thing, 
no  sufficient  legal  proof  of  crime,  there  can  be  no  legal 
criminality.  In  penal  jurisdiction  there  can  be  no  middle 
term  ;  the  party  must  be  absolutely  and  unconditionally 
guilty  or  not  guilty.  Nor  under  any  circumstances  can 
considerations  of  supposed  expediency  ever  supersede 
the  immutable  obligations  of  justice;  and  occasional  im- 
punity of  crime  is  an  evil  of  far  less  magnitude  than  the 
punishment  of  the  innocent.  Such  considerations  of 
mistaken  policy  led  some  of  the  writers  on  the  civil  and 
canon  laws  to  modify  their  rules  of  evidence,  according 
to  the  difficulties  of  proof  incidental  to  particular  crimes, 
and  to  adopt  the  execrable  maxim,  that  the  more  atro- 
cious was  the  offence,  the  slighter  was  the  proof  neces- 
sary ;  in  atrocissimis  leviores  conjeeturce  sufficiunt,  et  licet 
judici  jura  transgredi.  Such  indeed  is  the  logical  and 
inevitable  consequence,  when,  from  whatever  motive, 
the  plea  of  expediency  is  permitted  to  influence  judicial 
integrity.  The  clearest  principles  of  justice  require 
that  whatever  the  nature  of  the  crime,  the  amount  and 
intensity  of  the  proof  shall  in  all  cases  be  such  as  to 
produce  the  full  assurance  of  moral  certainty.* 

Section  2. 

PROOF  OF  the  CORPUS  DELICTI  BY  CIRCUMSTANTIAL  EVIDENCE. 

But  it  is  clearly  established  that  it  is  not  necessary  that 
the  corpus  delicti  should  be  proved  by  direct  and  positive 
evidence,  and  it  would  be  most  unreasonable  to  require 
such  evidence.  Crimes,  and  especially  those  of  the  worst 
kinds,  are  naturally  committed  at  chosen  times,  and  in 

a  See  ante,  Gh.  I,  s.  3. 


PROOF  OF  THE  CORPUS  DELICTI.         2(1 1 

d.'irkness  and  secresy ;  and  human  tribunals  must  act  up(»n 
such  indications  as  the  circumstances  of  the  case  present 
or  admit,  or  society  must  be  broken  up.  Nor  is  it  very 
often  that  adequate  evidence  is  not  afforded  by  the  at- 
tendant and  surrounding  facts,  to  remove  all  mystery, 
and  to  afford  such  a  reasonable  degree  of  certainty  as 
men  are  daily  accustomed  to  regard  as  sufficient  in  the 
most  important  concerns  of  life  :  to  expect  more  would 
be  equally  needless  and  absurd.  In  Burdett's  case*  this 
subject  underwent  much  discussion,  and  was  elaborately 
treated  by  (he  bench.  Mr.  Justice  Best  said,  "  When 
one  or  more  things  are  proved  from  which  experience 
enables  us  to  ascertain  that  another,  not  proved,  must 
have  happened,  we  presume  that  it  did  happen,  as  well 
in  criminal  as  in  civil  cases.  Nor  is  it  necessary  that  the 
fact  not  proved  should  be  established  by  irrefragable  in- 
ference. It  is  enough  if  its  existence  is  highly  probable, 
particularly  if  the  opposite  party  has  it  in  his  power  to 
rebut  it  by  evidence,  and  yet  offers  none ;  for  then  we 
have  something  like  an  admission  that  the  presumption 
is  just.  It  has  been  solemnly  decided,  that  there  is  no 
difference  between  the  rules  of  evidence  in  civil  and  crim- 
inal cases.  If  the  rules  of  evidence  prescribe  the  best 
course  to  get  at  truth,  they  must  be  and  are  the  same  in 
all  cases  and  in  all  civilized  countries.  There  is  scarcely 
a  criminal  case,  from  the  highest  down  to  the  lowest,  in 
which  courts  of  justice  do  not  act  upon  this  principle." 
His  lordship  added,  "  It  therefore  appears  to  me  quite 
absurd  to  state  that  we  are  not  to  act  upon  presumption. 
Until  it  pleases  Providence  to  give  us  means  beyond 
those  our  present  faculties  afford  of  knowing  things  done 
in  secret,  we  must  act  on  presumptive  truth,  or  leave  the 

a  4  B.  &  Aid.  95. 


202  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

worst  crimes  unpunished.  I  admit,  where  presumption 
is  intended  to  be  raised  as  to  the  corpus  delicti,  that  it 
ought  to  be  strong  and  cogent."  Mr.  Justice  Hoh'oyd 
said,  "  No  man  is  to  be  convicted  of  any  crime  upon 
mere  naked  presumption.  A  light  or  rash  presumption, 
not  arising  either  necessarily,  probably,  or  reasonably, 
from  the  facts  proved,  cannot  avail  in  law.  But  crimes 
of  the  highest  nature,  more  especially  cases  of  murder, 
are  established,  and  convictions  and  executions  there- 
upon frequently  take  place  for  guilt  most  convincingly 
and  conclusively  proved,  upon  presumptive  evidence  only 
of  the  guilt  of  the  party  accused ;  and  the  well-being  and 
security  of  society  much  depend  upon  the  receiving  and 
giving  due  effect  to  such  proof.  The  presumptions 
arising  from  those  proofs  should,  no  doubt,  and  most 
especially  in  cases  of  great  magnitude,  be  duly  and  cor- 
rectly weighed.  They  stand  only  as  proofs  of  the  facts 
presumed  till  the  contrary  be  proved,  and  those  pre- 
sumptions are  either  weaker  or  stronger  according  as  the 
party  has,  or  is  reasonably  to  be  supposed  to  have  it  in 
his  power  to  produce  other  evidence  to  rebut  or  to 
weaken  them,  in  case  the  fact  so  presumed  be  not  true, 
and  according  as  he  does  or  does  not  produce  such  con- 
trary evidence."  Mr.  Justice  Bayley  said,  "  No  one  can 
doubt  that  presumptions  may  be  made  in  criminal  as 
well  as  in  civil  cases.  It  is  constantly  the  practice  to  act 
upon  them,  and  I  apprehend  that  more  than  one-half  of 
the  persons  convicted  of  crimes,  are  convicted  on  pre- 
sumptive evidence.  If  a  theft  has  been  committed,  and 
shortly  afterwards  the  property  is  found  in  the  possession 
of  a  person  who  can  give  no  account  of  it,  it  is  presumed 
that  he  is  the  thief,  and  so  in  other  criminal  cases ;  but 
the  question  always  is,  whether  there  are  sufficient  prem- 


PROOF  OF  THE  CORPUS  DELICTI.  203 

ises  to  warrant  the  conclusion."  Lord  Chief  Justice 
Abbott  said,  "  A  fact  must  not  be  inferred  without  prem- 
ises which  will  warrant  the  inference ;  but  if  no  fact 
could  be  thus  ascertained  by  inference  in  a  court  of  law, 
very  few  offences  would  be  brought  to  punishment.  In 
a  great  proportion  of  trials,  as  they  occur  in  practice,  no 
direct  proof  that  the  party  accused  actually  committed 
the  crime  is  or  can  be  given ;  the  man  who  is  charged 
with  theft  is  rarely  seen  to  break  the  house  or  take  the 
goods ;  and  in  cases  of  murder,  it  rarely  happens  that 
the  eye  of  any  witness  sees  the  ftital  blow  struck,  or  the 
poisonous  ingredient  poured  into  the  cup."  The  law  on 
this  point  was  also  very  emphatically  declared  by  Mr. 
Baron  Parke  in  Tawell's  case.  His  lordship  said,  "  The 
jury  had  been  properly  told  by  the  counsel  for  the  pros- 
ecution that  circumstantial  evidence  is  the  only  evidence 
which  can  in  cases  of  this  kind  lead  to  discovery.  There 
is  no  way  of  investigating  them  except  by  the  use  of  cir- 
cumstantial evidence  ;  but  Providence  has  so  ordered  the 
affairs  of  men  that  it  most  frequently  happens  that  great 
crimes  committed  in  secret  leave  behind  them  some 
traces,  or  are  accompanied  by  some  circumstances  which 
lead  to  the  discovery  and  punishment  of  the  offender ;  * 
therefore  the  law  has  wisely  provided  that  you  need  not 
have,  in  cases  of  this  kind,  direct  proof,  that  is,  the  proof 
of  eye-witnesses,  who  see  the  fact  and  can  depose  to  it 
upon  their  oaths.  It  is  impossible,  however,  not  to  say 
that  is  the  best  proof,  if  that  proof  is  offered  to  you  upon 
the  testimony  of  men  whose  veracity  you  have  no  reason 

*  "  Ces  circonstances  sont  autant  de  temoins  muets,  que  la  Providence  semble 
avoir  places  autour  du  crime,  pour  fair  jaillir  la  lumiere  dc  I'ombro  dans  laquelle 
I'agent  s'est  efforce  d'ensevclir  le  fait  principal ;  elles  sont  conime  un  fanal  qui 
eclaire  I'esprit  du  juge,  et  le  dirige  vers  des  traces  certains  qu'il  suffit  de  suivre  pour 
atteindre  a  la  verite." — Mittermaier,  ut  stijjra,  ch.  53. 


204  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

to  doubt ;  but  on  the  other  hand  it  is  equally  true  with 
regard  to  circumstantial  evidence,  that  the  circumstances 
may  often  be  so  clearly  proved,  so  closely  connected  with 
it,  or  leading  to  one  result  in  conclusion,  that  the  mind 
may  be  as  well  convinced  as  if  it  were  proved  by  eye- 
witnesses. This  being  a  case  of  circumstantial  evidence, 
I  advise  you,"  said  the  learned  judge,  "  as  I  invariably 
advise  juries,  to  act  upon  a  rule  that  you  are  first  to 
consider  what  facts  are  clearly,  distinctly,  indisputably 
proved  to  your  satisfaction;  and  you  are  to  consider 
whether  those  facts  are  consistent  with  any  other  rational 
supposition  than  that  the  prisoner  is  guilty  of  that  offence. 
If  you  think  that  the  facts  in  this  case  are  all  consistent 
with  the  supposition  that  the  prisoner  is  guilty,  and  -can 
offer  no  resistance  to  that,  except  the  character  the  pris- 
oner has  borne,  and  except  the  supposition  that  no  man 
would  be  guilty  of  so  atrocious  a  crime  as  that  laid  to  the 
charge  of  the  prisoner,  that  cannot  much  influence  your 
minds  ;  for  we  all  know  that  crimes  are  committed,  and, 
therefore,  the  existence  of  the  crime  is  no  inconsistency 
with  the  other  circumstances,  if  those  circumstances  lead 
to  that  result.  The  point  for  you  to  consider  is,  whether, 
attending  to  the  evidence,  you  can  reconcile  the  circum- 
stances adduced  in  evidence  with  any  other  supposition 
than  that  he  has  been  guilty  of  the  offence.  If  you  can- 
not, it  is  your  bounden  duty  to  find  him  guilty ;  if  you 
can,  then  you  will  give  him  the  benefit  of  such  suppo- 
sition. All  that  can  be  required  is,  not  absolute,  posi- 
tive proof,  but  such  proof  as  convinces  you  that  the 
crime  has  been  made  out."  * 

The  same  general  principle  prevails  with  regard  to 
the  proof  of  crimes  of  every  description,  and  of  every 

^  Reg.  V.  Tawell,  ut  supra. 


PROOF  OF  THE  CORPUS  DELICTI.  205 

element  of  the  corpus  delicti.  Thus,  on  the  trial  of  a 
man  for  stealing  pepper,  it  appeared  that  on  the  first 
floor  of  a  warehouse  a  large  quantity  of  pepper  was  kept 
in  bulk,  and  that  the  prisoner  was  met  coming  out  of  the 
lower  room  of  the  warehouse  where  he  had  no  business 
to  be,  having  on  him  a  quantity  of  pepper  of  the  same 
description  with  that  in  the  room  above.  On  being 
stopped  he  threw  down  the  pepper,  and  said,  "  I  hope 
you  will  not  be  hard  with  me."  From  the  large  quan- 
tity in  the  warehouse  it  could  not  be  proved  that  any 
pepper  had  been  taken  from  the  bulk.  It  was  urged 
on  behalf  of  the  prisoner  that  there  must  be  direct  and 
positive  evidence  of  a  corpus  delicti,  and  that  presump- 
tive' evidence  was  insufficient  for  that  purpose ;  but  the 
Court  of  Criminal  Appeal  held  that  the  prisoner  had 
been  rightly  convicted.''  Mr.  Justice  Maule  said  that 
the  offence  with  which  the  prisoner  is  charged  must  be 
proved,  and  that  involves  the  necessity  of  proving  that 
the  prosecutor's  goods  have  been  taken.  But  why,  con- 
tinued the  learned  judge,  is  that  to  be  differently  proved 
from  the  rest  of  the  case  ?  If  the  circumstances  satisfy 
the  jury,  what  rule  is  there  which  renders  some  more 
positive  and  direct  proof  necessary  ?  And  he  mentioned 
the  case  of  a  father  and  two  sons,  who  were  convicted 
of  stealing-  from  their  employers  a  quantity  of  shoes 
and  materials  for  making  shoes,  though  the  prosecutors 
said  their  stock  was  so  large  that  they  could  not  say 
they  had  missed  any  one  of  the  articles  alleged  to  have 
been  stolen.^ 

But  it  is  not  necessary  that  every  individual  fact 


»  Reg,  V.  Burton,  23  L.  J.  N.  S.  M.  C.  52;  and  see  Reg.  v.  Dredge,  1  Cox,  235; 
and  ante,  108. 
b  Ihid. 


206  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

should  be  indisputably  proved.  On  a  trial  for  forgery, 
in  Scotland,  Lord  Meadowbank  said  :  "  I  must  tell  you 
that  the  learned  counsel  for  the  panel  stated  the  law  in- 
correctly when  he  said  that  you  must  have  decisive, 
irrefragable,  and  conclusive  proof  of  every  point  in  a 
case  like  the  present,  before  finding  the  instrument  to 
be  forged.  The  law  is  quite  the  reverse.  You  are  to 
take  all  the  evidence  together,  and  you  are  bound  to 
consider  whether  it  amounts  and  comes  up  to  affording 
a  moral  conviction  in  your  minds  equivalent  to  the  posi- 
tive and  direct  proof  of  a  fact."" 

Section  3. 

application  of  the  general  principle  to  proof  of  the 
CORPUS  delicti  in  cases  of  homicide. 

The  general  principles  of  evidence  under  discussion 
are  so  supremely  important  in  reference  to  cases  of 
homicide,  that  it  will  be  expedient  to  illustrate  the  ap- 
plication of  them  at  some  length. 

(1)  The  discovery  of  the  body  necessarily  affords  the 
best  evidence  of  the  fact  of  death,  and  of  the  identity 
of  the  individual,  and  most  frequently  also  of  the  cause 
of  death.''  A  conviction  for  murder  is  therefore  never 
allowed  to  take  place,  unless  the  body  has  been  found, 
or  there  is  equivalent  proof  of  death  by  circumstantial 
evidence  leading  directly  to  that  result,''  and  many  cases 
have  shown  the  danger  of  a  contrary  practice.  Three 
persons  were  executed  in  the  year  1660,  for  the  murder 


*  Reg.  V.  Humphreys,  tit  supra. 
*>  Mittermaier,  ut  suprn,  cb.  24. 
"  Per  Mr.  Baron  Parke,  in  Reg.  v.  Tawell,  ut  supra. 


PROOF   OF   THE   CORPUS   DELICTI.  207 

of  a  person  who  had  suddenly  disappeared,"  but  about 
two  years  afterwards  he  reappeared.  It  appeared  that 
he  had  been  out  to  collect  his  mistress's  rents,  and  had 
been  robbed  by  highwaymen,  who  put  him  on  board  a 
ship  which  was  captured  by  Turkish  pirates,  by  whom 
he  was  sold  into  slavery.  Sir  Matthew  Hale  mentioned 
a  case  where  A.  was  long  missing,  and  upon  strong  pre- 
sumptions B.  was  supposed  to  have  murdered  him,  and 
to  have  consumed  the  body  to  ashes  in  an  oven,  where- 
upon B.  was  indicted  for  murder,  and  convicted,  and 
executed,  and  within  one  year  afterwards  A.  returned, 
having  been  sent  beyond  sea  by  B.  against  his  will ; 
"  and  so,"  that  learned  writer  adds,  "  though  B.  justly 
deserved  death,  yet  he  was  really  not  guilty  of  that 
offence  for  which  he  suffered."^  Sir  Edward  Coke  also 
gives  the  case  of  a  man  who  was  executed  for  the  mur- 
der of  his  niece,  who  was  afterwards  found  to  be  living, 
of  which  the  particulars  have  been  given  in  a  former 
part  of  this  Essay .*^  Sir  -Matthew  Hale,  on  account  of 
these  cases,  says,  "  I  will  never  convict  any  person  of 
murder  or  manslaughter,  unless  the  fact  were  proved  to 
be  done,  or  at  least  the  body  found.''  The  judicial  his- 
tory of  all  nations,  in  all  times,  abounds  with  similar 
warnings  and  exemplifications  of  the  danger  of  neglect- 
ing these  salutary  cautions.® 

But  nevertheless,  to  require  the  discovery  of  the  body 

»  Rex  V.  Perrys,  14  St.  Tr.  1312;  and  see  11  St.  Tr.  463;  see  also  the  Scotch  case 
of  Green  and  others,  14  St.  Tr.  1197,  where,  in  1705,  the  captain  of  a  vessel  and 
several  of  his  crew  were  executed  on  a  charge  of  piracy  and  murder;  but  the  party 
supposed  to  have  been  murdered  reappeared  many  years  afterwards,  having  been 
taken  at  sea  and  carried  into  captivity. 

b  2  Hale's  P.  C.  c.  39. 

0  See  ante,  p.  155;  :ind  for  other  cases  of  the  same  kind,  see  Green's  case,  14  St. 
Tr.  1311. 

d2  P.  C.  ch.  39. 

e  See  the  case  of  the  two  Booms,  1  Greenleaf 's  L.  of  Ev.  s.  214,  and  ante,  p.  71. 


208  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

in  all  cases  would  be  unreasonable  and  lead  to  absurdity 
and  injustice,  and  it  is  indeed  frequently  rendered  impos- 
sible by  the  act  of  the  offender  himself.  It  is  said  that 
on  the  trial  for  murder  of  the  mother  and  reputed  father 
of  a  bastard  child,  whom  they  had  stripped  and  thrown 
into  the  dock  of  a  seaport  town,  after  which  it  was  never 
seen  again,  Mr.  Justice  Gould  advised  an  acquittal  on 
the  ground  that  as  the  tide  of  the  sea  flowed  and  reflowed 
into  and  out  of  the  dock  it  might  possibly  have  carried 
out  the  living  infant.*  Mr.  Justice  Story  said  of  the 
proposition  in  question  that  "  it  certainly  cannot  be  ad- 
mitted as  correct  in  point  of  common  reason  or  of  law, 
unless  courts  of  justice  are  to  establish  a  positive  rule  to 
screen  persons  from  punishment  who  may  be  guilty  of 
the  most  flagitious  offences.  In  the  cases  of  murder  com- 
mitted on  the  high  seas  the  body  is  rarely  if  ever  found, 
and  a  more  complete  encouragement  and  protection  to 
the  worst  offences  of  this  sort,  could  not  be  invented 
than  a  rule  of  this  strictness.  It  would  amount  to  a 
universal  condonation  of  all  murders  committed  on  the 
high  seas."^  It  is  now  clearly  established  that  the  fact 
of  death  may  be  legally  inferred  from  such  strong  and 
unequivocal  circumstances  of  presumption  as  render  it 
morally  certain,  and  leave  no  ground  for  reasonable  doubt; 
as  where,  on  the  trial  of  a  mariner  for  the  murder  of  his 
captain  at  sea,  a  witness  stated  ihat  the  prisoner  had 
proposed  to  kill  him,  and  that,  being  alarmed  in  the  night 
by  a  violent  noise,  he  went  upon  deck  and  saw  the  pris- 
oner throw  the  captain  overboard,  and  that  he  was  not 
seen  or  heard  of  afterwards,  and  that  near  the  place  on 
the  deck  where  the  captain  was,  a  billet  of  wood  was 

*  Per  Grarrow  arguendo  in  Hindmarsh's  case,  2  Leach's  C.  0.  371. 

•>  United  States  v.  Gilbert,  2  Sumner,  19,  quoted  in  Berrill  on  Cir.  Ev.  679. 


PROOF  OF  THE  CORPUS  DELICTI.         209 

found,  and  that  the  deck  and  part  of  the  prisoner's  dress 
were  stained  with  blood.  It  was  urged  that,  as  there 
were  many  vessels  near  the  place  where  the  transaction 
was  alleged  to  have  occurred,  the  probability  was  that 
the  party  had  been  taken  up  by  some  of  them  and  was 
then  alive;  but  the  court,  though  it  admitted  the  gen- 
eral rule  of  law,  left  it  to  the  jury  to  say  upon  the  evi- 
dence, whether  the  deceased  was  not  killed  before  the 
body  was  cast  into  the  sea,  and  the  jury  being  of  that 
opinion,  the  prisoner  was  convicted  and  executed  ;  "■  but 
it  is  not  easy  to  perceive  why  the  natural  presumption 
from  these  facts  should  have  been  thus  restricted  to  a 
presumption  that  the  party  had  been  killed  before  he 
was  thrown  overboard. 

The  rule  and  its  qualifications  are  well  exemplified  by 
the  case  of  Elizabeth  Ross,  who  was  tried  for  the  murder 
of  Caroline  Walsh.  The  deceased  had  been  repeatedly 
solicited  by  the  prisoner  to  live  with  her  and  her  hus- 
band, but  had  refused.  However,  she  at  last  consented, 
and  went  for  that  purpose  to  the  prisoner's  lodgings,  in 
Goodman's  Fields,  in  the  evening  of  the  19th  of  August, 
1831,  taking  with  her  her  bed  and  an  old  basket,  in 
which  she  was  accustomed  to  carry  tape  and  other  articles 
for  sale.  Notwithstanding  all  inquiry,  from  that  even- 
ing all  traces  of  the  deceased  were  lost,  and  when  the 
prisoner  was  required  by  her  relatives  to  account  for 
her  disappearance  she  prevaricated,  but  finally  asserted 
that  she  had  gone  out  early  in  the  morning  of  the  next 
day,  and  had  not  returned.  Many  circumstances  con- 
firmed their  suspicions  that  she  had  been  murdered,  and 
in  the  month  of  October  the  prisoner  was  apprehended, 
and  charged  with  the  murder  of  the  old  woman.     From 

»  Rex  V.  Hindmarsh,  2  Leach's  C.  C.  648. 
U 


210  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

the  testimony  of  the  prisoner's  son,  a  boy  of  twelve  years 
of  age,  it  appeared  that  she  had  suffocated  the  deceased 
on  the  evening  of  her  arrival,  by  placing  her  hands  over 
her  mouth,  and  pressing  on  her  chest;  and  he  deposed 
that  the  following  morning  he  saw  the  dead  body  in  the 
cellar  of  the  house,  and  that  in  the  evening  he  saw  his 
mother  leave  the  house  with  something  large  and  heavy 
in  a  sack.  A  medical  man  deposed  that  the  means  de- 
scribed would  be  sufficient  to  cause  death.  It  happened 
most  singularly  that  on  the  evening  of  the  day  following 
that  of  the  alleged  murder,  an  old  woman  was  found  ly- 
ing in  the  street  in  the  immediate  neighborhood,  in  a 
completely  exhausted  condition,  and  in  a  most  filthy  and 
squalid  state.  On  being  questioned  she  stated  that  her 
name  was  Caroline  Welsh,  and  that  she  was  a  native  of 
Ireland.  Her  hip  was  found  to  be  fractured,  in  conse- 
quence of  which  she  was  conveyed  to  the  London  Hos- 
pital, where  she  subsequently  died.  The  prisoner  when 
apprehended  insisted  that  this  was  the  female  whom  she 
was  accused  of  having  murdered.  The  resemblance  of 
names  and  the  coincidence  of  time  were  very  remark- 
able, but  by  the  examination  of  numerous  witnesses  the 
following  points  of  difference  were  established  :  They 
were  both  Irish  women ;  but  Caroline  Walsh  came  from 
Kilkenny  ;  Caroline  Welsh  from  Waterford.  Walsh  was 
•eighty-four  years  of  age,  tall,  of  a  sallow  complexion, 
gray  hair,  and  had  very  perfect  incisor  teeth  in  both 
jaws,  having  lost  only  a  side  tooth  in  the  upper  and 
lower  jaws  from  the  effect  of  continual  smoking  with  a 
tobacco-pipe.  Welsh  (the  woman  who  died  in  the  hos- 
pital) was  about  sixty  years  of  age,  tall,  dark,  like  a 
mulatto,  but  had  no  front  teeth,  and  the  alveolar  cavities 
corresponding  to  them  had  been  obliterated  for  a  consid- 


PROOF  OF  THE  CORPUS  DELICTI.  211 

erable  time.  Walsh  was  healthy,  cleanly,  and  neat  in 
her  person,  and  her  feet  were  perfectly  sound ;  Welsh 
was  considerably  emaciated ;  in  a  dirty  and  filthy  con- 
dition ;  her  hip  broken,  her  feet  covered  with  bunions 
and  excrescences,  and  the  toes  overlapped  one  another. 
The  two  women  were  differently  dressed  :  Walsh  was 
dressed  in  a  black  stuff  gown,  a  broken  old  willow  bon- 
net, and  a  faded  blue  shawl  with  a  broad  border ;  Welsh 
wore  a  striped  blue  cotton  gown,  a  dark  or  black  silk 
bonnet,  and  a  snuff-colored  shawl  with  little  or  no  border. 
Walsh's  clothing  was  proved  to  have  been  sold  by  the 
prisoner  to  different  persons,  and  almost  every  article 
was  produced  in  court  and  identified.  The  clothes  of 
Welsh,  on  account  of  their  disgusting  condition,  had 
been  burnt  by  order  of  the  parish  authorities.  Both  of 
these  women  had  similar  baskets  ;  that  of  Walsh  had  no 
lid  or  cover,  while  that  found  on  Welsh  had.  Lastly, 
the  body  of  the  latter  was  taken  up  from  the  burial- 
ground  of  the  London  Hospital  for  the  purpose  of  iden- 
tification, and  it  was  sworn  by  two  of  the  granddaughters 
of  Walsh  not  to  be  the  body  of  their  grandmother.  The 
l^risoner  was  convicted  and  executed.*  The  corpse  of 
the  murdered  woman  was  most  probably  sold  by  the 
prisoner  for  the  purpose  of  dissection ;  and  other  mur- 
ders were  committed  about  the  same  time,  both  in  Eng- 
land and  Scotland,  from  the  same  motive.'' 

(2)  It  is  another  necessary  step  in  the  establishment 
of  the  corpus  delicti  in  cases  of  homicide,  that  the  body, 
when  discovered,  be  satisfactorily  identified  as  that  of 
the  person  whose  death  is  the  subject  of  inquiry.     Mr. 

a  R.  V.  Ross,  0.  B.  Sess.  Pap.  1831. 

b  See  Rex  i-.  Burke,  Alison,  ut  supi-a,  p.  74,  Syme's  Jud.  Rep.  345.     Rex  v.  Bishop 
and  others,  0.  B.  Sess.  Pap.  1S32. 


212  WILLS   ON   CIRCUMSTANTIAL    EVIDENCE. 

Justice  Park  stopped  the  trial  of  a  woman,  charged  with 
the  murder  of  her  illegitimate  child,  because  the  supposed 
body  was  nothing  but  a  mass  of  corruption,  so  that  there 
were  no  lineaments  of  the  human  face,  and  it  was  impos- 
sible even  to  distinguish  its  sex.''  On  the  trial  of  a  wo- 
man for  the  murder  of  her  brother,  a  child  eight  years  of 
age,  by  poison,  the  sexton  proved  the  interment  on  the 
29th  of  June,  and  the  exhumation  on  the  12th  of  August 
following,  of  a  body  which  he  believed  to  be  that  of  the 
deceased,  from  the  coffin-plate,  and  the  place  from  which 
he  had  exhumed  it,  but  he  had  not  seen  the  body  in  the 
coffin  at  the  time  of  interment,  and  could  not  recognize 
it  independently  of  those  circumstances,  on  account  of  its 
state  of  decay.  Mr.  Baron  Maule  refused  to  receive  evi- 
dence of  the  contents  of  the  coffin-plate,  on  the  ground 
that,  being  removable,  it  ought  to  have  been  produced, 
and  there  being  no  other  evidence  of  identity,  stopped 
the  case.''  On  the  trial  of  a  girl  for  the  murder  of  her 
illegitimate  child,  it  appeared  that  she  was  proceeding 
from  Bristol  to  Llandago,  and  was  seen  near  Tintern  at 
six  o'clock  in  the  evening,  with  the  child  in  her  arms, 
and  that  she  arrived  at  Llandago  between  eight  and  nine 
without  it,  and  that  the  body  of  a  child  was  afterwards, 
found  in  the  river  Wye  near  Tintern,  but  which  appeared 
from  circumstances  not  to  be  the  prisoner's  child ;  Lord 
Abinger  held  that  the  prisoner  could  not  be  called  upon 
to  account  for  her  child,  or  to  say  where  it  was,  unless 
there  was  evidence  to  show  that  her  child  was  actually 
dead  ;  the  jury  were  not  sitting,  he  said,  to  inquire  what 
the  prisoner  had  done  with  her  child,  which  might  be 

*  See  Mr.  Justice  Park's  charge  to  the  grand  jury  in  Rex  v.  Thurtell,  Hertford 
Winter  Assizes,  1824;  Reg.  v.  Edge,  ante,  p.  187. 

"  Reg.  V.  Edge,  ante,  p.  187;  and  see  Reg.  v.  Henley,  1  Cos,  C.  C.  112, 


PROOF  OF  THE  CORPUS  DELICTI.  213 

then  alive  and  well.*  In  a  similar  case  Mr,  Baron 
Bramwell  observed  that  the  evidence  of  identity  was  not 
complete  ;  that  still,  if  the  jury  thought  there  was  rea- 
sonable evidence  upon  the  point,  they  might  think  that 
if  the  child  was  still  alive  the  prisoner  would  probably 
produce  it  in  a  case  where  her  life  was  at  stake,  but 
that  she  was  at  liberty  to  act  upon  the  defect  of  proof, 
and  to  say  that  the  prosecutor  had  failed  to  prove  the 
identity.'' 

But,  nevertheless,  it  is  not  necessary  that  the  remains 
should  be  identified  by  direct  and  positive  evidence, 
where  such  proof  is  impracticable,  and  especially  if  it 
has  been  rendered  so  by  the  act  of  the  party  accused. 
A  man  was  convicted  of  the  murder  of  a  creditor  who 
had  called  to  obtain  payment  of  a  debt,  and  whose  body 
he  had  cut  into  pieces  and  attempted  to  dispose  of  by 
burning ;  the  effluvium  and  other  circumstances  alarmed 
the  neighbors,  and  a  portion  of  the  body  remained  un- 
consumed,  sufficient  to  prove  that  it  was  that  of  a  male 
adult ;  and  various  articles  which  had  belonged  to  the 
deceased  were  found  on  the  person  of  the  prisoner,  who 
was  apprehended  putting  off  from  the  Black  Rock  at 
Liverpool,  after  having  ineffectually  endeavored  to  elude 
justice  by  drowning  himself.*'  The  remains  of  a  man 
which  had  lain  undiscovered  upwards  of  twenty-three 
years,  were  identified  by  his  surviving  widow  from  pecu- 
liarities in  the  teeth  and  skull,  and  from  a  carpenter's 
rule  found  with  them.*^  The  identification  of  human 
remains  has  been  facilitated  by  the  preservation  of  the 

»  Reg.  V.  Hopkins,  8  C.  &  P.  591. 
••  Reg.  V.  Rudge,  Hereford  Summer  Assizes,  1857. 

8  Rex  V.  Cook,  Leicester  Summer  Assizes,  1834;  and  see  Reg.  v.  Good,  Sess.  Pap. 
May,  1842. 

*  Rex  V.  Clewes,  Worcester  Spring  Assizes,  1830,  coram  Mr.  Justice  Littledale. 


214  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

head  and  other  parts  in  spirits;*  by  the  antiputrescent 
action  of  the  substances  used  to  destroy  life ;  by  the 
similarity  of  the  undigested  remains  of  food  found  in  the 
stomach,  with  the  food  which  it  has  been  known  that 
the  party  has  eaten,^  by  means  of  clothing  or  other  arti- 
cles of  the  deceased  traced  to  the  possession  of  the  pris- 
oner, and  unexplained  by  any  evidence  that  he  became 
innocently  possessed  of  them ; "  by  means  of  artificial 
teeth,*^  and  numerous  other  mechanical  coincidences. 

(3)  In  the  proof  of  criminal  homicide  the  true  cause 
of  death  must  be  clearly  established  ;  and  the  possibility 
of  accounting  for  the  event  by  self-inflicted  violence,  ac- 
cident or  natural  causes,  excluded  ;  and  only  when  it  has 
been  irrefragably  proved  that  no  other  hypothesis  will 
explain  all  the  conditions  of  the  case,  can  it  be  safely 
and  justly  concluded  that  it  has  been  caused  by  inten- 
tional injury.  But  in  accordance  with  the  principles 
which  govern  the  proof  of  every  other  element  of  the 
Gorjms  delicti,  it  is  not  necessary  that  the  cause  of  death 
should  be  verified  by  direct  and  positive  evidence ;  it  is 
sufficient  if  it  be  proved  by  circumstantial  evidence  which 
produces  a  moral  conviction  in  the  minds  of  the  jury, 
equivalent  to  that  which  is  the  result  of  positive  and 
direct  evidence.® 

Suicide,  accident,  and  natural  causes  are  frequently 
suggested  and  plausibly  urged,  as  the  causes  of  death, 
where  the  pretence  cannot  receive  direct  contradiction, 
and  where  the  truth  can  be  ascertained  only  by  a  com- 


»  Rex  V.  Hayes  and  others,  3  Par.  and  F.  73. 
•>  Rex  V.  MacDougal,  Burnett's  C.  L.  of  Scotl.  p.  5-iO. 
0  Rex  V.  Ross,  ante,  p.  209 ;  Reg.  v.  Good,  Sess.  Pap.  May,  1842. 
*  Reg.  ('.  Manning  and  wife,  and  Webster's  case,  nt  supra. 

«  See   the   language    of   Lord  Meadowbank  in    Reg.   v.    Humphreys,  Swinton's 
Rep.  315. 


rilOOF   OF   THE    CORPUS   DELICTI.  215 

]i:iiison  of  all  the  attendant  circumstances;  some  of 
which,  if  the  defence  he  false,  are  commonly  found  to  be 
irreconcilable  with  the  cause  alleged.  A  young  woman 
who  had  borne  a  child  to  him,  was  taken  by  her  seducer 
from  her  father's  house,  under  the  pretence  of  convey- 
ing her  to  Ipswich  to  be  married.  The  prisoner  having 
represented  that  the  parish  officers  meant  to  apprehend 
the  deceased,  she  left  her  house  on  the  18th  of  May  in 
disguise,  a  bag  containing  her  own  clothes  having  been 
taken  by  the  prisoner  to  a  barn  belonging  to  his  mother, 
where  it  was  agreed  that  she  should  change  her  dress. 
The  deceased  "was  never  heard  of  afterwards ;  and  the 
various  and  contradictory  accounts  given  of  her  by  the 
prisoner  having  excited  suspicions,  which  were  con- 
firmed by  other  circumstances,  it  was  ultimately  deter- 
mined to  search  the  barn,  where,  on  the  19th  of  April, 
after  an  interval  of  nearly  twelve  months,  the  body  of  a 
female  was  found,  which  was  clearly  identified  as  that  of 
the  deceased.  A  handkerchief  was  drawn  tight  around 
the  neck,  and  a  wound  from  a  pistol-ball  was  traced 
through  the  left  cheek,  passing  out  at  the  right  orbit ; 
and  three  other  wounds  were  found,  all  of  which  had  been 
made  by  a  sharp  instrument,  and  one  of  which  had  en- 
tered the  heart.  The  prisoner,  who  in  the  interval  had 
removed  from  the  neighborhood,  upon  his  apprehension 
denied  all  knowledge  of  the  deceased  ;  but  in  his  defence 
he  admitted  the  identity  of  the  remains,  and  alleged  that 
an  altercation  took  place  between  them  at  the  barn,  in 
consequence  of  which,  and  of  the  violence  of  temper  ex- 
hibited by  the  deceased,  he  expressed  his  determination 
not  to  marry  her,  and  left  the  barn ;  but  that  immedi- 
ately afterwards  he  heard  the  report  of  a  pistol,  and  going 
back  found  the  deceased  on  the  ground  apparently  dead ; 


216  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

and  that,  alarmed  by  the  situation  in  which  he  found 
himself,  he  formed  the  determination  of  burying  the 
corpse,  and  accounting  for  her  absence  as  well  as  he 
could  But  the  variety  of  the  means  and  instruments 
employed  to  produce  death,  some  of  them  unusual  wnth 
females,  in  connection  with  the  contradictory  statements 
made  by  the  prisoner  to  account  for  the  absence  of  the 
deceased,  entirely  discredited  the  account  set  up  by  him. 
He  afterwards  made  a  full  confession,  and  was  executed 
pursuant  to  his  sentence.''  But  these  heads  of  evidence 
belong  rather  to  the  department  of  medical  jurispru- 
dence. Such  auxiliary  evidence  is  frequently  of  the 
highest  value  in  demonstrating  the  falsehood  and  impos- 
sibilit}''  of  the  alleged  defence  ;  but  when  uncorroborated 
by  conclusive  moral  circumstances,  it  must  be  received 
with  a  certain  amount  of  circumspection  and  reserve,  of 
the  necessity  of  which  some  striking  illustrations  have 
occurred  in  other  parts  of  this  essay.''  These  prelim- 
inary considerations  naturally  lead  to  the  application  of 
them  to  the  proof  of  the  corpus  delicti  in  some  special 
cases  of  great  importance  and  interest. 

Section  4. 

application  of  the  general  principle  to  the  proof  of 
the  corpus  delicti  in  cases  of  poisoning. 

There  are  two  classes  of  cases  of  criminal  homicide,  in 
which  the  cause  of  death  can  rarely  be  proved  by  direct 
evidence,  and  in  which  the  proof  of  it  by  circumstantial 
evidence  is  attended  with  peculiar  difficulties ;   those, 

a  Rex  V.  Corder,  Bury  St.  Edmunds  Summ.  Ass. 

*>  See  particularly  Rex  v.  Booth  and  Reg.  v.  Newton,  ante,  c.  s. 


PROOF  OF  THE  CORPUS  DELICTI.  217 

namely,  of  poisoning  and  infanticide.  An  examination 
of  the  principles  on  which  courts  of  law  proceed  in  the 
investigation  of  such  cases,  will  afford  an  instructive 
commentary  upon  the  foregoing  principles  of  evidence 
and  procedure. 

1.  Among  the  most  important  grounds  upon  which 
the  proof  of  criminal  poisoning  commonly  rests  are,  the 
symptoms  during  life,  and  post-mortem  appearances  ;  but 
these  subjects  belong  to  another  department  of  science, 
and  have  only  an  incidental  connection  with  the  subject 
of  this  treatise.  As  is  the  case  with  regard  to  all  other 
questions  of  science,  courts  of  justice  must  derive  their 
knowledge  from  the  testimony  of  persons  w^ho  have 
made  them  the  objects  of  their  special  duty,  applying 
to  the  data  thus  obtained  those  principles  of  interpreta- 
tion and  judgment  which  constitute  the  tests  of  truth  in 
all  other  cases. 

It  is  obviously  essential  that  the  particular  symptoms 
and  ijost-mortem  appearances  should  be  shown  to  be  not 
incompatible  wdth  the  hypothesis  of  death  from  poison. 
In  general  such  appearances  are  inconclusive,  since 
though  they  are  commonly  characteristic  of  death  from 
poison,  they  not  unfrequently  resemble  the  appearance 
of  disease,  and  may  have  been  produced  by  some  natural 
cause.  Nevertheless,  as  to  some  particular  poisons,  the 
symptoms  may  be  so  characteristic  as  to  afford  unmis- 
takable evidence  of  poisoning,  and  preclude  all  possibility 
of  referring  the  event  of  death  to  any  other  cause. 
Thus  in  Palmer's  case,  it  was  conclusively  shown  by 
numerous  witnesses  of  the  greatest  professional  experi- 
ence, that  the  symptoms  in  the  course  of  their  progress 
were  clearly  distinguishable  from  those  of  tetanus  or 


218  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

any  other  known  form  of  disease,  and  were  not  only 
consistent  with,  but  specially  characteristic  of,  poisoning 
by  strychnine.'' 

It  is  a  very  important  circumstance  in  corroboration 
of  the  reality  of  alleged  poisoning,  if  several  persons  are 
simultaneously  affected  with  symptoms  indicative  of 
poisoning,  after  partaking  of  the  same  food,  as  when 
four  members  of  a  family  were  taken  ill  after  having 
eaten  of  yeast  dumplings  made  by  the  prisoner,  who 
was  the  cook,  while  those  members  of  it  who  had  not 
partaken  of  them  were  not  affected.^ 

The  probability  in  such  cases  is  greatly  strengthened 
if  the  violence  of  the  symptoms  has  been  in  proportion 
to  the  quantities  of  the  suspected  food  taken  by  the  par- 
ties ;*^  and  on  the  other  hand,  a  favorable  presumption  is 
created,  if  only  one  member  of  a  family  is  taken  ill  after 
partaking  of  food  of  which  other  members  of  it  have 
eaten  with  impunity.*^ 

From  the  nature  of  the  case,  these  elements  of  proof 
never  occur  alone ;  but  are  necessarily  blended  with 
facts  of  a  more  conclusive  character. 


■*  In  a  late  case  involving  much  conflicting  evidence  as  to  morbid  appearances 
^'upposed  to  have  been  indicative  of  death  by  slow  poisoning,  a  pardon  was  granted 
after  conviction,  on  the  ground  of  the  imperfection  of  medical  science,  and  of  the 
fallibility  of  judgment,  with  respect  to  an  obscure  malady,  even  of  skillful  and  ex- 
perienced medical  practitioners.     Reg.  v.  Smethurst,  C.  C.  C.  Sess.  Pap.  Aug.  1859. 

''  Rex  V.  Fenning,  ut  supra.  The  evidence  against  this  young  girl  was  most 
unsatisfactory,  and  she  was  long  thought  to  have  been  unjustly  convicted  (3  Mem. 
of  Romilly,  235 ;  Suggestions  for  the  Repression  of  Crime,  by  M.  D.  Hill,  31),  but 
it  has  been  recently  stated  on  good  authority  that  she  made  a  confession  to  a 
minister  of  religion,  who  had  her  confidence  (see  the  "  Times"  newspaper  of  August 
5th,  1857).  It  is  unaccountable  that  the  statement  should  have  been  withheld,  and 
the  public  sufiFered  to  remain  for  nearly  half  a  century  under  the  belief  that  she  was 
wrongfully  executed. 

"  Rex  V.  Alcorn,  1  Syme's  Just.  Rep.  221. 

•1  Rex  V.  Bickle,  Exeter  Summ.  Ass.  1834,  coram  Mr.  Justice  Patteson. 


PROOF    OF    THE    CORPUS    DELICTI.  219 

2.  The  possession  of  poisonous  matter  by  the  party 
charged  with  the  administration  of  it,  is  always  an  im- 
portant fact,  and  when  death  has  been  caused  by  poison 
of  the  same  kind,  and  no  satisfactory  explanation  of 
that  fact  is  given  by  the  accused  or  suggested  by  the 
surrounding  circumstances,  a  strong  inference  of  guilt 
may  be  created  against  the  accused  ;  especially  if  he  has 
attempted  to  account  for  such  possession  by  false  state- 
ments. In  Palmer's  case,  Lord  Chief  Justice  Campbell 
said  that  if  the  jury  should  come  to  the  conclusion  that 
the  symptoms  which  the  deceased  had  exhibited  were 
consistent  with  strychnia,  a  fearful  case  was  made  out 
against  the  prisoner.  "  I  have  listened,"  said  the  learned 
judge,  "  with  the  most  anxious  attention,  to  know  what 
explanation  would  be  given  respecting  the  strychnia  that 
has  been  purchased  by  the  prisoner.  There  is  no  evi- 
dence of  the  intention  with  which  it  was  purchased, 
there  is  no  evidence  how^  it  was  applied,  what  became 
of  it,  or  what  was  done  with  it."* 

3.  Not  only  must  it  appear  that  the  accused  possessed 
the  deadly  agent,  but  it  is  indispensable  to  show  that  i:e 
had  the  oppoi'tuniti/  of  administering  it.  Upon  the  effect 
of  these  heads  of  evidence,  and  upon  the  caution  with 
which  they  ought  to  be  received,  some  valuable  observa- 
tions were  made  by  Mr.  Baron  Rolfe  in  a  case  before  him. 
The  prisoner  was  indicted  for  the  murder  of  his  wife,  who 
was  taken  ill  on  the  morning  of  the  25th  of  November, 
and  died  two  days  afterwards  with  symptoms  resembling 
those  of  an  irritant  poison.  Poisoning  not  having  been 
suspected,  the  body  was  interred  without  examination ; 
but  suspicions  having  afterwards  arisen,  it  was  exhumed 
in  the  month  of  June  following,  and  a  large  quantity  of 

»  Report,  ut  supra,  313. 


220  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

arsenic  was  discovered  in  the  stomach.  Several  weeks 
after  the  apprehension  of  the  prisoner,  the  police  took 
possession  of  some  of  his  garments,  which  were  found 
hanging  up  in  his  lodgings,  in  the  pockets  of  which  ar- 
senic was  found.  In  his  address  to  the  jury,  Mr,  Baron 
Rolfe  said,  "  Had  the  prisoner  the  opportunity  of  ad- 
ministering poison  ?  that  was  one  thing.  Had  he  any 
motive  to  do  so  ?  that  was  another.  There  was  also 
another  question,  which  was  most  important ;  it  was 
whether  the  party  who  had  the  opportunity  of  administer- 
ing poison  had  poison  to  administer?  If  he  had  not  the 
poison,  the  having  the  opportunity  became  unimportant. 
If  he  had  the  poison,  then  another  question  arose,  did 
he  get  it  under  circumstances  to  show  that  it  was  for  a 
guilty  or  improper  object?  The  evidence  by  which  it 
was  attempted  to  trace  poison  to  the  possession  of  the 
prisoner  was,  that  on  a  certain  occasion,  after  the  death 
of  the  wife,  -and  after  he  himself  was  apprehended,  the 
contents  of  the  pockets  of  a  coat,  waistcoat  and  trousers, 
on  being  tested  by  the  medical  witnesses,  were  found  to 
contain  arsenic ;  and  that,  a  week  afterwards,  another 
waistcoat  which  came  into  the  possession  of  the  police- 
man, on  being  examined,  was  also  found  to  contain  arsenic. 
Did  that  bring  home  to  the  prisoner  the  fact  that  he  had 
arsenic  in  his  possession  in  November?  It  was  not  con- 
clusive that,  because  he  had  it  in  June,  he  had  it  in 
November.  He  (the  learned  judge)  inferred  from  what 
had  been  stated  by  the  medical  men,  that  the  quantity 
of  arsenic  found  in  the  pockets  of  the  clothes  was  very 
small.  Now,  if  he  had  it  in  a  larger  quantity  in  No- 
vember, and  it  had  been  used  for  some  purpose,  being  a 
mineral  substance,  such  particles  were  likely  to  remain 
in  the  pockets,  and  finding  it  there  in  June  was  certainly 


PROOF   OF   THE    CORPUS   DELICTI.  221 

evidence  that  it  might  have  been  there  in  larger  quantity 
in  November ;  but  obviously,  by  no  means  conclusive,  as 
it  might  have  been  put  in  afterwards.  But  connected 
with  the  arsenic  being  found  in  the  clothes,  there  were 
other  considerations  which  he  thought  were  worthy  to  be 
attended  to.  The  prisoner  was  apprehended  on  the  9th  of 
June,  and  he  knew  long  before  that  time  that  an  inquiry 
was  going  on.  He  was  taken  up,  not  in  the  clothes  in 
which  the  arsenic  was  found  ;  and  a  fortnight  afterwards 
a  batch  of  clothes  was  given  up  in  which  arsenic  was 
detected.  Now,  if  arsenic  had  been  found  in  the  clothes 
he  was  wearing,  it  would  be  perfectly  certain,  in  the  or- 
dinary sense,  that  he  had  arsenic  in  his  possession.  But 
it  was  going  a  step  further  to  say  that  because  arsenic 
was  discovered  in  clothes  of  his,  accessible  to  so  many 
people  between  the  time  of  his  apprehension  and  their 
being  given  up,  it  was  there  when  he  was  apprehended  ; 
in  all  probability,  he  thought,  it  was,  but  that  was  by  no 
means  the  necessary  consequence.  That  observation  was 
entitled  to  still  more  weight,  with  regard  to  the  waistcoat 
last  given  up  to  the  police,  because  it  was  not  given  up 
till  three  weeks  after  the  prisoner  was  apprehended,  and 
had  been  hanging  in  the  kitchen,  accessible  to  a  variety 
of  persons.  ...  It  was  urged  also  that  arsenic  was  used 
for  cattle.  It  might  be  so,  and  it  might  be  that  the  pris- 
oner might  innocently  have  had  arsenic.  The  circum- 
stance of  there  being  arsenic  in  so  many  pockets  ought 
not  to  be  lost  sight  of,  for  it  could  scarcely  be  conceived 
that  a  guilty  person  should  be  so  utterly  reckless  as  to 
put  the  poison  he  used  into  every  pocket  he  had.  One 
would  have  thought  that  he  would  have  kept  it  concealed, 
or  put  it  onl}''  in  some  safe  place  for  the  immediate  pur- 
pose of  being  used;  and  it  was  worthy  of  observation 


222  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

that  it  did  not  appear  to  have  been  put  into  the  clothes 
in  such  a  way  as  it  wouhl  have  been  put  had  the  pris- 
oner been  desirous  to  conceal  it,"  The  prisoner  was 
acquitted.* 

In  a  late  case  of  the  deepest  interest,  before  the  High 
Court  of  Justiciary  at  Edinburgh,  a  question  whether 
or  not  the  prisoner  had  the  opportunity  of  administering 
arsenic  to  the  deceased  was  the  turning-point  of  the  case. 
The  prisoner,  a  young  girl  of  nineteen,  was  tried  upon 
an  indictment  charging  her,  in  accordance  with  the  law 
of  Scotland,  with  the  administration  to  the  same  person 
of  arsenic,  with  intent  to  murder,  on  two  several  occa- 
sions in  the  month  of  February,  and  with  his  murder  by 
the  same  means  on  the  22d  of  March  following.  She 
had  returned  home  from  a  boarding-school  in  1853,  and 
in  the  following  year  formed  a  clandestine  connection 
with  a  foreigner  of  inferior  position,  named  L'Angelier, 
whose  addresses  had  been  forbidden  by  her  parents, 
which  early  in  1856  became  of  a  criminal  character,  as 
w^as  shown  by  her  letters.  In  the  month  of  December 
following,  another  suitor  appeared,  whose  addresses  were 
accepted  by  her  with  the  consent  of  her  parents,  and 
arrangements  were  made  for  their  marriage  in  June. 
During  the  earlier  part  of  this  engagement,  the  prisoner 
kept  up  her  interviews  and  correspondence  with  L'An- 
gelier ;  but  the  correspondence  gradually  became  cooler, 
and  she  expressed  to  him  her  determination  to  break  of!" 
the  connection,  and  implored  him  to  return  her  letters ; 
but  this  he  refused  to  do,  and  declared  that  she  should 
marry  no  other  person  while  he  lived.  After  the  failure 
of  her  efforts  to  obtain  the  return  of  her  letters,  she  re- 
sumed in  her  correspondence  her  former  tone  of  passion- 

*  Reg.  V.  Graham,  Carlisle  Summer  Assizes,  1845. 


PROOF  OF  THE  CORPUS  DELICTI.  223 

ate  affection,  assuring  him  that  she  would  marry  him 
and  no  one  else,  and  denying  that  there  was  any  truth 
in  the  rumors  of  her  connection  with  another.  Slic 
appointed  a  meeting  on  the  night  of  the  19th  of  Febru- 
ary, at  her  father's  house,  where  she  was  in  the  habit 
of  receiving  his  visits,  after  the  family  had  retired  to 
rest,  telling  him  that  she  wished  to  have  back  her  "  cool 
letters,"  apparently  with  the  intention  of  inducing  him 
to  believe  that  she  remained  constant  in  her  attachment 
to  him.  In  the  middle  of  the  night  after  that  interview, 
at  which  he  had  taken  coffee  prepared  by  the  prisoner. 
L'Angelier  was  seized  with  alarming  illness,  the  symp- 
toms of  which  were  similar  to  those  of  poisoning  by 
arsenic.  There  w^as  no  evidence  that  the  prisoner  pos- 
sessed arsenic  at  that  time,  but  on  the  21st  she  purchased 
a  large  quantity,  professedly  for  the  purpose  of  poison- 
ing rats,  an  excuse  for  which  there  w^as  no  pretence. 
On  the  night  of  the  22d,  L'Angelier  again  visited  the 
prisoner,  and  about  eleven  o'clock  on  the  following  day 
was  seized  with  the  same  alarming  symptoms  as  before  ; 
and  on  this  occasion  also  he  had  taken  cocoa  from  the 
hands  of  the  prisoner.  After  this  attack  L'Angelier 
continued  extremely  ill,  and  was  advised  to  go  from 
home  for  the  recovery  of  his  health. 

On  the  6th  of  March  the  prisoner  a  second  time 
bought  arsenic  ;  and  on  the  same  day  she  went  with  her 
family  to  the  Bridge  of  Allan  (where  she  was  visited  by 
her  accepted  lover),  and  remained  till  the  17th,  when 
they  returned  to  Glasgow.  On  the  day  before  her  de- 
parture for  the  Bridge  of  Allan,  L'Angelier  wrote  a 
letter  to  her,  in  which  he  reproached  her  for  the  manner 
in  which  she  had  evaded  answering  the  questions  which 
he  had  put  to  her  in  a  former  letter  respecting  her  ru- 


224  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

iiiored  engagement  with  another  person,  expressed  his 
conviction  that  there  was  foundation  for  the  report,  and 
after  repeating  his  inquiries  threatened,  if  she  again 
evaded  them,  to  try  some  other  means  of  coming  at  the 
truth.  To  this  letter  the  prisoner,  although  she  had 
heen  engaged  nearly  two  months,  and  was  receiving 
the  visits  of  her  affianced  at  the  Bridge  of  Allan,  from 
which  place  she  wrote,  replied  that  there  was  no  founda- 
tion for  the  report,  and  that  she  would  answer  all  his 
questions  when  they  met,  and  informed  him  of  her 
expected  return  to  Glasgow  on  the  17th  of  March. 
L'Angelier,  pursuant  to  medical  advice,  on  the  10th  of 
March  went  to  Edinburgh,  leaving  directions  for  the 
transmission  of  his  letters,  and  having  become  much 
better,  left  that  place  on  the  19th  for  the  Bridge  of 
Allan,  During  this  interval,  namely,  on  the  17th,  he 
returned  to  his  lodgings  at  Glasgow,  and  inquired  anxi- 
ously of  his  landlady  if  there  was  no  letter  waiting  for 
him,  as  the  prisoner's  family  were  to  be  at  home  on 
that  day,  and  she  was  to  write  to  fix  another  interview. 
He  left  Glasgow  again  on  Thursday,  the  19th,  for  the 
Bridge  of  Allan,  leaving  directions  as  before  for  the 
transmission  to  him  of  any  letter  which  might  come  for 
him  during  his  absence.  On  the  18th  of  March  the  pris- 
oner a  third  time  purchased  a  large  quantity  of  arsenic, 
alleging,  as  before,  that  it  was  for  the  purpose  of  killing 
rats.  A  letter  from  the  prisoner  to  L'Angelier  came  to 
his  lodgings  on  Saturday  the  21st,  from  the  date  and  con- 
tents of  which  it  appeared  that  she  had  written  a  letter 
appointing  to  see  him  on  the  19th  ;  he  had  not,  however, 
received  it  in  time  to  enable  him  to  keep  her  appoint- 
ment. In  that  letter  she  urged  him  to  come  to  see  her, 
and  added,  '"  I  waited  and  waited  for  you,  but  you  came 


PROOF  OF  THE  CORPUS  DELICTI.  225 

not.  I  shall  wait  again  to-morrow  night,  same  time  anil 
arrangement."  This  letter  was  immediately  transmitted 
to  L'Angelier,  and  in  consequence  he  returned  to  his 
lodgings  at  Glasgow  about  eight  o'clock  on  the  evening 
of  Sunday,  the  22d,  in  high  spirits  and  improved  health, 
having  travelled  a  considerable  distance  by  railway,  and 
'  walked  fifteen  miles.  He  left  his  lodgings  about  nine 
o'clock,  and  was  seen  going  leisurely  in  the  direction  of 
the  prisoner's  house,  and  about  twenty  minutes  past  nine 
he  called  at  the  house  of  an  acquaintance  who  lived  about 
four  or  five  minutes'  walk  from  the  prisoner's  residence. 
After  leaving  his  friend's  house,  all  trace  of  him  was  lost, 
until  two  o'clock  in  the  morning,  when  he  was  found 
at  the  door  of  his  lodgings,  unable  to  open  the  latch, 
doubled  up  and  speechless  from  pain  and  exhaustion, 
and  about  eleven  o'clock  the  same  morning  he  died,  from 
the  effects  of  arsenic,  of  which  an  enormous  quantity  was 
found  in  his  body.  The  prisoner  stated  in  her  declara- 
tion that  she  had  been  in  the  habit  of  using  arsenic  as  a 
cosmetic,  and  denied  that  she  had  seen  the  deceased  on 
that  eventful  night ;  whether  she  had  done  so  or  not  was 
the  all-momentous  question.  As  there  was  no  evidence 
that  the  prisoner  possessed  poison  at  the  time  of  the  first 
illness,  nor  any  analysis  made  of  the  matter  ejected  on 
either  the  first  or  second  illness,  the  learned  Lord  Jus- 
tice Clerk  Cockburn  said  that  there  was  no  proof  of  the 
administration  of  poison  on  either  of  those  occasions ; 
that  the  first  charge,  therefore,  had  entirely  failed,  and 
that  it  w^as  safer  not  to  hold  that  the  second  illness  was 
caused  by  poison.  As  to  the  principal  charge  of  murder, 
his  lordship  said,  "  Supposing  the  jury  were  quite  satis- 
fied that  the  prisoner's  letter  brought  L'Angelier  again 
into  Glasgow,  were  they  in  a  situation  to  say,  with  sat- 

15 


226  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

isfaction  to  their  consciences,  that  as  an  inevitable  and 
just  result  from  this,  they  could  find  it  proved  that  the 
prisoner  and  deceased  had  met  that  night?  that  was  the 
point  in  the  case.  But  it  is  for  you  to  say  here,  whether 
it  has  been  proved  that  L'Angelier  was  in  the  house  that 
night.  If  you  can  hold  that  that  link  in  the  chain  is 
supplied  by  just  and  satisfactory  inference — remember 
that  I  say,  just  and  satisfactory — and  it  is  for  you  to  say 
whether  the  inference  is  satisfactory  and  just,  in  order  to 
complete  the  proof,  if  you  really  feel  that  you  may  have 
the  strongest  suspicion  that  he  saw  her,  for  really  no  one 
need  hesitate  to  say  that,  as  a  matter  of  moral  opinion, 
the  whole  probabilities  of  the  case  are  in  favor  of  it, 
but  if  that  is  all  the  amount  that  you  can  derive  from 
the  evidence;  the  link  still  remains  wanting  in  the  chain, 
the  catastrophe  and  the  alleged  cause  of  it  are  not  found 
linked  together.  And  therefore  you  must  be  satisfied 
that  you  can  here  stand  and  rely  upon  the  firm  founda- 
tion, I  say,  of  a  just  and  sound,  and  perhaps  I  may  add, 
inevitable  inference.  That  a  jury  is  entitled  often  to 
draw  such  an  inference  there  is  no  doubt.  .  .  If  you 
find  this  to  be  a  satisfjxctory  and  just  inference,  I  cannot 
tell  you  that  you  are  not  at  liberty  to  act  upon  it,  be- 
cause most  of  the  matters  occurring  in  life  must  depend 
upon  circumstantial  evidence,  and  upon  the  inferences 
which  a  jury  may  feel  bound  to  draw.  But  it  is  an  in- 
ference of  a  very  serious  character ;  it  is  an  inference 
upon  which  the  death  of  this  party  by  the  hand  of  the 
prisoner  really  must  depend.  And  then,  you  will  take 
all  the  other  circumstances  of  the  case  into  your  con- 
sideration, and  see  whether  you  can  infer  from  them  that 
they  met.  If  you  think  they  met  together  that  night, 
and  he  was  seized  and  taken  ill,  and  died  of  arsenic,  the 


PROOF  OF  THE  CORPUS  DELICTI.  227 

symptoms  beginning  shortly  after  the  time  he  left  her, 
it  will  be  for  you  to  say,  whether  in  that  case  there  is 
any  doubt  as  to  whose  hand  administered  the  poison." 
In  another  part  of  his  charge  the  learned  judge  said  : 
"  In  the  ordinary  matters  of  life,  when  you  find  the  man 
came  to  town  for  the  purpose  of  getting  a  meeting,  you 
may  come  to  the  conclusion  that  they  did  meet ;  but, 
observe  that  becomes  a  very  serious  inference  indeed  to 
draw  in  a  case  where  you  are  led  to  suppose  that  there 
was  an  administration  of  poison  and  death  resulting 
therefrom.  It  may  be  a  very  natural  inference,  looking 
at  the  thing  morally.  None  of  you  can  doubt  that  she 
waited  for  him  as:ain  ;  and  if  she  waited  the  second  ninht, 
after  her  first  letter,  it  w^as  not  surprising  that  she  should 
look  out  for  an  interview  on  the  second  night,  after  the 
second  letter.  .  .  .  She  says,  '  I  shall  wait  again  to-mor- 
row night,  same  hour  and  arrangement.'  And  I  say 
there  is  no  doubt,  but  it  is  a  matter  for  the  jury  to  con- 
sider, that  after  writing  this  letter  he  might  expect  she 
would  wait  another  night — that  is  the  observation  I 
made — and  therefore  it  was  very  natural  that  he  should 
go  to  see  her  that  Sunday  night. 

"  But,  as  I  said  to  you,  this  is  an  inference  only.  If 
you  think  it  such  a  just  and  satisfactory  inference  that 
you  can  rest  your  verdict  upon  it,  it  is  quite  competent 
for  you  to  draw  such  an  inference  from  such  letters  as 
these,  and  fi-om  the  conduct  of  the  man  coming  to  Glas- 
gow for  the  purpose  of  seeing  her,  for  it  is  plain  that 
that  was  his  object  in  coming  to  Glasgow.  It  is  suffi- 
ciently proved  that  he  went  out  immediately  after  he  got 
some  tea  and  toast,  and  had  changed  his  coat.  But  then, 
gentlemen,  in  drawing  an  inference,  you  must  always 
look  to  the  important  character  of  the  inference  which 


228  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

you  are  asked  to  draw.  If  this  had  been  an  appoint- 
ment about  business,  and  you  found  that  a  man  came  to 
Glasgow  for  the  purpose  of  seeing  another  upon  business, 
and  that  he  went  out  for  that  purpose,  having  no  other 
object  in  coming  to  Glasgow,  you  would  probably  scout 
the  notion  of  the  person  whom  he  had  gone  to  meet 
saying  I  never  saw  or  heai'd  of  him  that  day ;  but  the 
inference  which  you  are  asked  to  draw  is  this,  namely, 
that  they  met  upon  that  night,  where  the  fact  of  their 
meeting  is  the  foundation  of  a  charge  of  murder.  You 
must  feel,  therefore,  that  the  drawing  of  an  inference  in 
the  ordinary  matters  of  civil  business,  or  in  the  actual  in- 
tercourse of  mutual  friends,  is  one  thing,  and  the  infer- 
ence from  the  fact  that  he  came  to  Glasgow,  that  they 
did  meet,  and  that,  therefore,  the  poison  was  adminis- 
tered to  him  by  her  at  that  time,  is  another,  and  a  most 
enormous  jump  in  the  category  of  inferences.  Now, 
the  question  for  you  to  put  to  yourselves  is  this  :  Can 
you  now,  with  satisfaction  to  your  own  minds,  come  to 
the  conclusion  that  they  did  meet  on  that  occasion,  the 
result  being,  and  the  object  of  coming  to  that  conclusion 
being,  to  fix  down  upon  her  the  administration  of  the 
arsenic  by  which  he  died  ? 

"  She  has  arsenic  before  the  22d  ;  and  that  is  a  dread- 
ful fact,  if  you  are  quite  satisfied  that  she  did  not  get  it 
and  use  it  for  the  purpose  of  washing  her  hands  and  face. 
It  may  create  the  greatest  reluctance  in  your  mind,  to 
take  any  other  view  of  the  matter  than  that  she  was  guilty 
of  administering  it  somehow,  though  the  place  where  may 
not  be  made  out,  or  the  precise  time  of  the  interview. 
But,  on  the  other  hand,  you  must  keep  in  view  that  ar- 
senic could  only  be  administered  by  her  if  an  interview 
took  place  with  L'Angelier ;  and  that  interview,  though 


TROOF  OF  THE  CORPUS  DELICTI.  229 

it  may  be  the  result  of  an  inference  that  may  satisfy  you 
morally  that  it  did  take  place,  still  rests  upon  an  inference 
alone ;  and  that  inference  is  to  be  the  ground,  and  must 
be  the  ground,  on  which  a  verdict  of  guilty  is  to  rest. 
Gentlemen,  you  will  see,  therefore,  the  necessity  of  great 
caution  and  jealousy  in  dealing  with  any  inference  which 
you  may  draw  from  this.  You  may  be  perfectly  satis- 
fied that  L'Angelier  did  not  commit  suicide  ;  and  of 
course  it  is  necessary  for  you  to  be  satisfied  of  that,  be- 
fore you  could  find  that  anybody  administered  arsenic 
to  him.  Probably  none  of  you  will  think  for  a  moment 
that  he  went  out  that  night,  and  that,  without  seeing 
hQr,  and  without  knowing  what  she  wanted  to  see  him 
about,  if  they  had  met,  he  swallowed  above  200  grains 
of  arsenic  in  the  street,  and  that  he  was  carrying  it  about 
with  him.  Probably  you  will  discard  that  altogether, 
.  .  .  yet,  on  the  other  hand,  gentlemen,  keep  in  view 
that  that  will  not  of  itself  establish  that  the  prisoner 
administered  it.  The  matter  may  remain  most  mys- 
terious, wholly  unexplained  ;  you  may  not  be  able  to 
account  for  it  on  any  other  supposition ;  but  still  that 
supposition  or  inference  may  not  be  a  ground  on  which 
you  can  safely  and  satisfactorily  rest  your  verdict  against 
the  panel.  Now,  then,  gentlemen,  I  leave  you  to  con- 
sider the  case  with  reference  to  the  views  that  are  raised 
upon  this  correspondence.  I  don't  think  you  will  con- 
sider it  so  unlikely  as  was  supposed,  that  this  girl,  after 
writing  such  letters,  may  have  been  capable  of  cherish- 
ing such  a  purpose.  But  still,  although  you  may  take 
such  a  view  of  her  character,  it  is  but  a  supposition  that 
she  cherished  this  murderous  purpose ;  the  last  conclu- 
sion, of  course,  that  you  ought  to  come  to  merely  on 
supposition,  and  inference,  and  observation,  upon  this 


230  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

varying  and  wavering  correspondence  of  a  girl  in  the 
circumstances  in  which  she  was  placed.  It  receives 
more  importance,  no  doubt,  when  you  find  the  purchase 
of  arsenic  just  before  she  expected,  or  just  at  the  time 
she  expected,  L'Angelier.  But  still  these  are  but  sup- 
positions ;  they  are  but  suspicions. 

"  I  don't  say  that  inferences  may  not  competently  be 
drawn ;  but  I  have  already  warned  you  as  to  inferences 
which  may  be  drawn  in  the  ordinary  matters  of  civil 
life,  and  those  which  may  be  drawn  in  such  a  case  as 
this ;  and  therefore,  if  you  cannot  say,  We  find  here 
satisfactory  evidence  of  this  meeting,  and  that  the  poison 
must  have  been  administered  by  her  at  a  meeting,  what- 
ever may  be  your  suspicion,  however  heavy  the  weight 
and  load  of  suspicion  is  against  her,  and  however  you 
may  have  to  struggle  to  get  rid  of  it,  you  perform  the 
best  and  bounden  duty  as  a  jury,  to  separate  suspicion 
from  truth,  and  to  proceed  upon  nothing  that  you  do  not 
find  established  in  evidence  against  her."  The  jury  re- 
turned, in  conformity  with  the  law  of  Scotland,  a  verdict 
of  not  guilty  on  the  first,  and  of  not  proven  on  the  sec- 
ond and  third  charges.*^  On  the  supposition  that  the 
parties  met  on  the  fatal  evening  in  question,  there  could 
be  but  one  conclusion  as  to  the  guilt  of  the  prisoner,  the 
hypothesis  of  suicide  being  considered  by  the  learned 
judge  as  out  of  the  question,  as  it  obviously  was ;  and 
in  the  language  of  the  learned  judge,  "that  this  man, 
ardent  to  see  this  girl  again,  hoping  to  get  the  satisfac- 
tory answer  which  she  had  promised  to  give  him  respect- 
ing her  rumored  engagement  with  another,  should  hurry 
home  on  the  Sunday  night,  and  go  out  from  his  lodgings 

*  Reg.  r.  Madeleine  Smith,  June,  1857;    Reports  of  A.  F.  Irvine,  Advocate,  and 
John  Morrison,  Advocate. 


PROOF  OF  THE  CORPUS  DELICTI.  231 

in  the  hope  that  he  could  find  her  waiting,  and  that  there 
was  the  greatest  probability  of  his  seeing  her,  was,  he 
thought,  the  only  conclusion  the  jury  could  come  to  in 
the  matter,"  Without  presumption,  it  may  be  observed 
that  the  distinction  thus  drawn  between  "  a  very  nat- 
ural inference,  looking  at  the  thing  morally,"  "  an  infer- 
ence that  may  satisfy  a  jury  morally,"  so  that  "  no  one 
need  hesitate  to  say  as  a  matter  of  moral  opinion,  the 
whole  probabilities  of  the  case  are  in  favor  of  it,"  and 
"  as  the  only  conclusion  the  jury  could  come  to,"  and 
that  moral  certainty  which  is  the  only  foundation  of  our 
confidence  in  the  sufficiency  and  safety  of  conclusions 
based  upon  circumstantial  evidence,  and  which  in  every 
case  can  be  but  infe^^ential,  is  fine  and  shadowy  in  the 
extreme.  Nor  is  it  easy  to  reconcile  with  sound  prin- 
ciple, as  recognized  in  other  cases,  English  and  Scotch, 
any  distinction  in  the  application  of  the  rules  of  evidence 
and  inference  according  as  the  subject-matter  relates  to 
the  ordinary  or  the  uncommon  events  of  life.**  And  even 
upon  that  supposition,  surely  no  matter  or  occasion  of 
ordinary  business  could  have  been  more  important  to 
her,  or  have  more  deeply  interested  the  parties,  or  be 
more  likely  to  bring  two  young  persons  so  mutually  im- 
plicated together,  than  the  object  of  the  anxiously  looked- 
for  meeting  appointed  for  the  night  in  question. 

4.  The  science  of  chemistry  generally  affords  most 
important  auxiliary  evidence  as  to  the  corpus  delicti  in 
the  investigation  of  cases  of  imputed  poisoning.  As 
with  regard  to  scientific  evidence  of  every  other  kind, 
the  processes  and  results  of  chemical  analysis  in  applica- 
tion to  the  discovery  or  reproduction  of  poison  are  sub- 
ordinated to  the  control  of  those  general  princii)les  of 

*  See  Rex  v.  Ings,  and  Reg.  v.  Hanson  and  others,  ante,  p.  196. 


232  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

law  which,  in  all  other  cases,  govern  the  admissibility 
of  evidence  and  the  estimation  of  its  weight  and  effect : 
indeed,  those  rules  have  received  some  of  their  most 
instructive  illustrations  from  cases  of  this  nature. 

Of  the  various  chemical  tests,  unquestionably  those 
which,  applied  to  the  human  body  or  its  contents  or 
excreta^  reproduce  the  particular  poison  which  has  been 
employed,  are  the  most  satisfactory,  since,  if  the  re- 
agents employed  are  free  from  impurities,  they  give  an 
infallible  result. 

A  remarkable  exemplification  of  the  necessity  of  this 
qualification  occurred  in  a  late  trial,  in  which  Reinsch's 
test,  which  had  previously  been  regarded  as  infallible 
in  the  separation  of  arsenic,  turned  out  to  be  fallacious 
when  applied  to  chlorate  of  potass ;  and,  in  fact,  the 
arsenic  which  was  found  in  the  mixture  had  been  liber- 
ated from  the  copper  gauze  employed  in  the  experiment." 

In  general,  therefore,  it  may  be  considered  as  a  sound 
rule  of  procedure,  founded  in  justice  and  prudence,  that 
such  evidence,  whenever  it  is  capable  of  being  obtained, 
ought  to  be  adduced,  and  in  such  circumstances  the  fail- 
ure to  adduce  such  evidence,  unexplained  by  satisfac- 
tory reasons,  gives  serious  ground  for  doubt  as  to  the 
reality  of  the  alleged  poisoning. 

But  some  of  the  vegetable  poisons,  in  the  present  state 
of  science,  are  beyond  the  reach  of  chemical  processes. 
The  offender  himself,  by  his  chemical  knowledge  and 
choice  of  means,  by  the  administration  of  minimum  doses, 
or  b}^  the  destruction  of  the  portions  of  the  body  con- 
taining the  suspected  matter,  or  by  the  destruction,  di- 
lution, or  other  tampering  with  its  excreta  or  contents,  may 

*  Reg.  V.  Smethurst,  C.  C.  C.  Sess.  Pap.  Aug.  1859,  ut  supra.     But  arsenic  was 
also  found  in  an  evacuation  not  complicated  with  the  same  source  of  fallacy. 


PROOF  OF  THE  CORPUS  DELICTI.  23o 

have  rendered  detection  by  the  reproduction  of  the  deadly 
agent  impracticable ;  or  the  absorption  of  the  poison,  or 
a  want  of  skill  in  the  experimenter,  or  failure  to  em})loy 
the  proper  means,  or  other  cause,  may  have  rendered 
the  necessary  chemical  researches  impracticable,  unsat- 
isfactory, or  inconclusive."  The  concurrence,  moreover, 
of  a  plurality  of  characteristic  tests,  separately  falla- 
cious, but  fallacious  from  different  causes,  may,  in  con- 
nection with  strong  moral  facts,  yield  a  result  of  so  high 
a  degree  of  probability  as  to  be  perfectly  convincing, 
though  the  poison  has  not  been  reproduced.** 

It  would  be  most  unreasonable,  therefore,  and  lead  to 
the  grossest  injustice,  and  in  some  circumstances  to  im- 
punity of  the  worst  of  crimes,  to  require,  as  an  imper- 
ative rule  of  law,  that  the  fact  of  poisoning  shall  be 
proved  by  any  special  and  exclusive  medium  of  proof, 
when  that  kind  of  proof  is  unattainable,  and  especially 
if  it  has  been  rendered  so  by  the  act  of  the  offender 
himself.  No  universal  and  invariable  rule,  therefore, 
can  be  laid  down ;  and  every  case  must  depend  upon  its 
own  particular  circumstances  ;  and,  as  in  all  other  cases, 
the  corpus  delicti  must  be  proved  by  the  best  evidence 
which  is  capable  of  being  adduced,  and  such  an  amount 
and  combination  of  relevant  facts,  whether  direct  or 
circumstantial,  as  establish  the  imputed  guilt  to  a  monil 
certainty,  and  to  the  exclusion  of  every  other  reasonable 
hypothesis. 

In  Tawell's  case  it  was  strenuously  urged  by  the 
counsel  for  the  prisoner  that  it  was  a  rule  of  law  that 
there  ought  to  be  positive  proof  of  the  mode  of  death, 
and  that  such  a  quantity  of  poison  was  found  in  the 

*  Rex  V.  Donellan  ;   Reg.  v.  Smcthurst,  ut  supra  ;  Reg.  v.  Palmer,  pout. 
•>  Rex  V.  Elder,  1  Syine's  Jud.  Rep.  71 ;  and  see  Rex  v.  Donnall,  jo<'«(. 


234  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

body  of  the  deceased  as  would  necessarily  occasion 
death.  But  this  doctrine  was  peremptorily  repudiated 
by  Mr.  Baron  Parke,  who  told  the  jury,  that  "if  the 
evidence  satisfied  them  that  the  death  was  occasioned 
by  poison,  and  that  that  poison  was  administered  by  the 
prisoner,  if  that,"  said  his  lordship,  "  is  proved  by  cir- 
cumstantial evidence,  it  is  not  necessary  to  give  direct 
and  positive  proof  what  is  the  quantity  which  would 
destroy  life,  nor  is  it  necessary  to  prove  that  such  a 
quantity  was  found  in  the  body  of  the  deceased,  if  the 
other  facts  lead  you  to  the  conclusion  that  the  death  was 
occasioned  by  poison,  and  that  it  was  knowingly  admin- 
istered by  the  prisoner.  You  must  take  this  fact,  just 
the  same  as  all  the  other  parts  of  the  case,  and  see  if 
you  are  satisfied,  as  reasonable  men,  whether  the  pris- 
oner is  guilty  or  not.  The  only  fact  which  the  law  re- 
quires to  be  proved  by  direct  and  positive  evidence  is 
the  death  of  the  party,  by  finding  the  body ;  or  when 
such  proof  is  absolutely  impossible,  by  circumstantial 
evidence  leading  closely  to  that  result,  as  where  a  body 
was  thrown  overboard  far  from  land,  when  it  is  quite 
enough  to  prove  that  fact  without  producing  the  body." 
His  lordship,  in  a  subsequent  part  of  his  charge,  said, 
"  There  is  very  reasonable  evidence,  supposing  that  to 
be  required  which  I  tell  you  is  not,  that  the  quantity  of 
prussic  acid  in  the  stomach  amounted  to  one  grain ;  and 
although  that  is  not  necessary  to  be  proved,  the  scien- 
tific evidence  shoAvs  that  one  grain  may  be  enough  to 
destroy  life."  In  reference  to  the  argument  urged  by 
the  prisoner's  counsel,  that  the  deceased  might  have 
died  from  some  sudden  emotion,  the  learned  judge  said 
that  it  was  within  the  range  of  possibility  that  a  per- 
son might  so   die   without  leaving   any  trace  on  the 


PROOF    OF    THE    CORPUS    DELICTI.  235 

brain ;  they  were  to  judge  whether  they  coukl  attribute 
death  to  that  cause,  if  they  found  strong  evidence  of 
the  presence  of  poison ;  because  they  were  not  to  have 
recourse  to  mere  conjecture ;  that,  where  the  result  of 
the  evidence  gave  them  the  existence  of  a  cause  to  which 
it  might  be  rationally  attributed,  they  were  not  to  sup- 
pose it  was  to  be  attributed  to  any  other  cause.'*  ' 

Lord  Campbell,  in  Palmer's  case,  said  that  it  was  not 
to  be  expected  that  witnesses  should  be  called  to  state 
that  they  saw  the  deadly  poison  administered  by  the 
prisoner,  or  mixed  up  by  the  prisoner  openly  before 
them.  Circumstantial  evidence,  as  to  that,  continued 
the  learned  judge,  is  all  that  can  be  reasonably  ex- 
pected ;  and  if  there  were  a  series  of  circumstances 
leading  to  the  conclusion  of  guilt,  a  verdict  of  guilty 
might  satisfactorily  be  pronounced.''  With  respect  to 
the  consideration  that  no  strychnia  was  found  in  the 
body,  it  was  for  them  to  consider,  but  there  was  no  rule 
of  law  according  to  which  the  poison  must  be  found  in 
the  body  of  the  deceased,  and  all  that  they  knew  re- 
specting the  poison  not  being  in  the  body  was,  that  in 
that  part  of  the  body  that  was  analyzed  by  the  witnesses 
no  strychnia  had  been  found.*" 

5.  Of  the  various  heads  of  evidence  in  charges  of  poi- 
soning, that  of  moral  conduct  is  of  most  general  interest. 
The  data  of  physiological  and  pathological  and  chemical 
science  must  always  be  matter  of  opinion  testified  to  by 
skilled  witnesses ;  whereas  in  the  forensic  discussion  of 
moral  facts,  appeal  is  necessarily  made  to  those  psycho- 
logical principles  of  our  nature  which  give  them  perti- 

^  Sbort-hand  Rep.,  ul  mipra, 
b  Report,  ut  supra,  p.  308. 
0  lb.  pp.  319-396. 


236  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

nence  and  significance,  and  upon  which  every  intelligent 
person  is  capable  of  forming  a  trustworthy  judgment. 
It  would  be  absurd  to  suppose  that  such  facts,  when 
clearly  connected  by  adequate  independent  evidence  with 
a  corpus  delicti,  are  simply  fortuitous  and  phenomenal ; 
on  the  contrary,  they  are  the  natural  and  unmistakable 
manifestations  of  the  secret  workings  of  the  mind,  not 
only  throwing  light  upon,  and  bringing  into  relief,  the 
character  of  the  act  itself,  but  tending  also  to  discrimi- 
nate the  individual  guilty  actor.  His  necessities,  his 
antipathies,  or  other  motives,  his  reluctance  to  permit 
examination  of  the  body,  or  its  contents,  or  excreta^  or 
of  other  suspected  matter,  his  contrivances  to  prevent  it, 
his  attempts  to  tamper  with  the  witnesses  or  the  officers 
of  justice,  or  with  such  suspected  matter,  or  with  any 
other  article  of  real  evidence,  his  falsehoods,  subter- 
fuges and  evasions,  these  and  many  other  circumstances 
constitute  most  material  explanatory  parts  of  the  res 
gestae,  and  afford  relevant  and  frequently  conclusive  evi- 
dence, from  which  his  guilt  may  be  reasonably  inferred. 
In  most  criminal  charges,  the  evidence  of  the  corpus 
delicti  is  separable  from  that  which  applies  to  the  indi- 
cation of  the  offender ;  but  in  cases  of  poisoning,  it  is 
scarcely  ever  possible  to  obtain  conclusive  evidence  of 
the  corpus  delicti,  irrespectively  of  the  explanatory  evi- 
dence of  moral  conduct;  and  Mr.  Justice  Buller,  in 
Donellan's  case,  told  the  jury  that  "  if  there  was  a  doubt 
upon  the  evidence  of  the  physical  witnesses,  they  must 
take  into  their  consideration  all  the  other  circumstances, 
either  to  show  that  there  was  poison  administered,  or 
that  there  was  not,  and  that  every  part  of  the  prisoner's, 
conduct  was  material  to  be  considered."^     So  in  Don- 

*  Gurney's  Short-hand  Report,  ut  supra,  p.  53. 


PROOF  OF  THE  CORPUS  DELICTI.  237 

nail's  case,  Mr.  Justice  Abbott,  in  sunimiiij]i:  up,  said  to 
the  jury  that  there  were  two  important  questions  :  first, 
did  the  deceased  die  of  poison  ?  and  if  they  should  be 
of  opinion  that  she  did,  then,  whether  they  were  satisfied 
from  the  evidence  that  the  poison  was  administered  by 
the  prisoner  or  by  his  means  ?  There  were  some  parts 
of  the  evidence  which  appeared  to  him  equally  applicable 
to  both  questions,  and  those  parts  were  what  related  to 
the  conduct  of  the  prisoner  during  the  time  of  the  open- 
ing and  inspection  of  the  body;  his  recommendation  of 
a  shell  and  the  early  burial ;  to  which  might  be  added 
the  circumstances,  not  much  to  be  relied  upon,  relative 
to  his  endeavors  to  evade  his  apprehension.  His  lord- 
ship also  said,  as  to  the  question  whether  the  deceased 
died  by  poison,  "  in  considering  what  the  medical  men 
said  upon  the  one  side  and  the  other,  you  must  take  into 
account  the  conduct  of  the  prisoner  in  urging  a  hasty 
funeral,  and  his  conduct  in  throwing  away  the  contents 
of  the  jug  into  the  chamber  utensil.""  Lord  Chief  Jus- 
tice Campbell,  in  his  charge  to  the  jury  in  Palmer's  case, 
said  that  "  in  cases  of  this  sort  the  evidence  had  often 
been  divided  into  medical  and  moral  evidence ;  the 
medical  being  that  of  the  scientific  men,  and  the  moral 
the  circumstantial  facts  which  are  calculated  to  prove 
the  truth  of  the  charge  against  the  party  accused. 
They  cannot,"  he  continued,  "  be  finally  separated  in 
the  minds  of  the  jury,  because  it  is  by  the  combination 
of  the  two  species  of  evidence  that  their  verdict  ought 
to  be  found.  In  this  case  you  will  look  at  the  medical 
evidence  to  see  whether  the  deceased,  in  your  opinion, 
did  die  by  strychnia  or  by  natural  disease  ;  and  you  will 
look  at  what  is  called  the  moral  evidence,  and  consider 

"■  Frazer's  Short-hand  Rep.,  ttt  supra,  pp.  127,  177. 


238  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

whether  that  shows  that  the  prisoner  not  only  had  the 
opportunity,  but  that  he  actually  availed  himself  of  that 
opportunity,  to  administer  to  the  deceased  the  deadly 
poison  of  which  he  died."*  His  lordship  also  said  that 
"  it  was  impossible  they  should  not  pay  attention  to  the 
conduct  of  the  prisoner,  and  that  there  were  some  in- 
stances of  his  conduct  as  to  which  they  would  say 
whether  they  belonged  to  what  might  be  expected  from 
an  innocent  or  a  guilty  man.  He  was  eager  to  have  the 
body  fastened  down  in  the  coffin.  Then  with  regard  to 
the  betting-book,  there  is  certainly  evidence  from  which 
you  may  infer  that  he  did  get  possession  of  the  de- 
ceased's betting-book,  and  that  he  abstracted  it  and 
concealed  it.  Then,  gentlemen,  you  must  not  omit  his 
conduct  in  trying  to  bribe  the  post-boy  to  overturn  the 
carriage  in  which  the  jar  was  being  conveyed  to  be  ana- 
lyzed in  London,  and  from  which  evidence  might  be 
obtained  of  his  guilt.  Again,  you  find  him  tampering 
with  the  postmaster,  and  procuring  from  him  the  opening 
of  a  letter  from  the  person  who  had  been  examining  the 
contents  of  the  jar,  to  the  attorney  employed  in  the  case. 
And  then,  gentlemen,  you  have  tampering  with  the  coro- 
ner, and  trying  to  induce  him  to  procure  a  verdict  from 
the  coroner's  jury  which  would  amount  to  an  acquittal. 
These  are  serious  matters  for  your  consideration,  but 
you,  and  you  alone,  will  say  what  inference  is  to  be 
drawn  from  them.  If  not  answered,  they  certainly 
present  a  serious  case  for  your  consideration."^ 

Among  the  most  important  circumstances  of  moral 
conduct,  and  in  analogy  with  the  rules  which  prevail  in 
the  proof  of  the  corpus  delicti  in  other  cases,  may  be  men- 

»  Reg.  V.  Palmer,  Report,  ut  supra,  p.  308. 
•>  Report,  ut  supra,  p.  320. 


PROOF  OF  THE  CORPUS  DELICTI.  239 

tioned  former  acts  of  poisoning,  or  attempts  to  poison, 
whether  the  same  individual,  or  other  members  of  the 
same  flimily,  where  such  successive  administrations 
throw  light  upon  the  particular  act  which  forms  the  sub- 
ject of  inquiry.  On  a  trial  for  murder  by  the  administra- 
tion of  prussic  acid  in  porter,  evidence  was  admitted  that 
the  deceased  had  been  taken  ill  several  months  before, 
after  partaking  of  porter  with  the  prisoner."  And  upon 
the  trial  of  a  woman  for  the  murder  of  her  husband  by 
arsenic,  in  September,  evidence  was  admitted  of  arsenic 
having  been  taken  by  two  of  her  sons,  one  of  whom  died 
in  December,  and  the  other  in  March  following,  and  also 
by  a  third  son,  who  took  arsenic  in  April  following,  but 
did  not  die.  Evidence  was  also  admitted  of  a  similarity 
of  symptoms  in  the  four  cases,  that  the  prisoner  lived  in 
the  same  house  with  her  husband  and  sons,  and  pre- 
pared their  tea,  cooked  their  victuals,  and  distributed 
them  to  the  four  parties.  Lord  Chief  Baron  Pollock  said 
his  opinion  was  that  evidence  was  receivable  that  the 
deaths  of  two  sons,  and  the  illness  of  the  third,  proceeded 
from  the  same  cause,  namely,  arsenic.  The  tendency 
of  such  evidence,  he  said,  was  to  prove,  and  to  confirm 
the  proof  already  given,  that  the  death  of  the  husband, 
whether  felonious  or  not,  was  occasioned  by  arsenic.  In 
that  case  he  thought  it  wholly  immaterial  whether  the 
deaths  of  the  sons  took  place  before  or  after  the  death  of 
the  husband.  The  domestic  history  of  the  family  during 
the  period  that  the  four  deaths  occurred  was  also  re- 
ceivable in  evidence,  to  show  that  during  that  time  ar- 
senic had  been  taken  by  four  members  of  it,  with  a  view 
to  enable  the  jury  to  determine  whether  such  taking  was 
accidental  or  not.     The  evidence,  he  said,  was  not  inad- 

*  Reg.  V.  Tawell,  ut  supra. 


240  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

mi.ssible,  by  reason  of  its  tendency  to  prove,  or  to  create 
a  suspicion  of  a  subsequent  felony.  His  lordship,  after 
taking  time  to  consider,  refused  to  reserve  the  point  for 
the  opinion  of  the  judojes,  under  the  11  &  12  Vict.  c.  78, 
and  stated  that  Mr.  Baron  Alderson  and  Mr.  Justice 
Talfourd  concurred  in  opinion  with  him.'' 

But,  nevertheless,  moral  facts  apparently  calculated  to 
create  the  greatest  suspicion,  may  not  be  of  a  suspicious 
nature,  or  may  be  too  fallacious  and  uncertain  to  justify 
conviction,  especially  where  the  corpus  delicti  is  matter 
of  inference  only,  and  not  established  on  a  basis  of  inde- 
pendent evidence.  Justice  requires  that  such  facts  should 
be  interpreted  in  a  spirit  of  candor,  and  with  proper 
allowance  for  the  weaknesses  of  men  who  may  be  sud- 
denly placed  in  circumstances  of  suspicion  and  difficulty. 
It  is  well  known,  for  example,  that  many  persons,  more 
especially  in  the  humbler  classes,  feel  great  repugnance 
to  permit  the  bodies  of  their  friends  to  be  subjected  to 
anatomical  examination.  The  manifestation  of  such  re- 
pugnance is  a  fact  to  be  taken  into  account,  like  all  other 
facts.  But  although  in  the  case  of  violent  or  sudden 
death,  and  particularly  when  caused  by  poison,  it  must 
be  known  that  i\\Q  post-mortem  examination  is  of  the  high- 
est importance,  it  by  no  means  follows  that  objection  to 
permit  such  examination  proceeds  from  the  consciousness 
of  guilt.  In  a  case  of  this  kind,  Mr.  Baron  Rolfe  said 
that  the  question  was,  from  what  motive  the  reluctance 
arose.  On  the  one  hand,  it  was  suggested  that  it  was 
because  the  prisoner  did  not  wish  the  cause  of  his  wife's 
death  to  be  investigated,  being  afraid  it  would  be  dis- 


»  Reg.  V.  Geering,  27  L.  J.  M.  C.  215;  and  see  Reg.  v.  May,  1  Cox's  C.  C.  2.36  ; 
Reg.  V.  Calder,  ih.  348,  and  the  language  of  Mr.  Baron  Maule,  in  Reg.  v.  Dossett,  2 
C.  &  K.  306. 


PROOF  OF  THE  CORPUS  DELICTI.  241 

covered  that  she  had  died  from  arsenic  ;  on  the  other, 
that  his  reluctance  arose  from  his  horror  of  the  notion  of 
his  wife's  dead  body  being  taken  up  and  exposed  to  the 
investigation  of  the  surgeons,  at  which  the  feelings  were 
apt  to  revolt.  Many  persons,  no  doubt,  feel  very  great 
liorror  at  the  notion  of  such  things  being  done  to  them- 
selves, or  those  connected  with  them,  w^hilst  others,  again, 
were  indifferent  on  the  subject,  leaving  their  own  bodies 
to  be  dissected.  But  few  persons  liked  to  have  their 
wives  or  their  daughters  so  exposed ;  the  prisoner,  said 
the  learned  judge,  might  not  be  one  of  them,  and  his  feel- 
ings on  that  subject  might  have  promoted  the  remark 
alleged  against  him;  and  surely  he  must  have  known 
that  any  reluctance  expressed  by  him  to  an  inquiry,  or 
wish  to  stop  it,  would  only  tend  to  make  those  who  were 
about  to  make  it  persevere.'^ 

It  happens,  of  necessity,  that  in  every  case  of  the  kind 
under  discussion  there  is  a  concurrence  of  evidence  de- 
rived, if  not  from  all,  at  least  from  several  of  the  sources 
which  have  been  mentioned  ;  so  that  the  strength  of  the 
conviction  finally  produced  depends  not  merely  upon  the 
sum  of  the  separate  forces,  but  upon  that  superior  force 
analogous  to  a  geometrical  progression  which  is  the  con- 
sequence of  their  combination. 

An  analysis  of  some  of  the  most  remarkable  recorded 
cases  of  criminal  poisoning  which  have  occurred  in  our 
judicial  annals,  will  form  an  interesting  commentary 
upon  the  general  rules  of  evidence,  and  more  especially 
in  their  application  to  the  interpretation  of  moral  incul- 
patory facts. 

John  Donellan,  Esq.,  was  tried  at  Warwick  Spring 
Assizes,  1781,  before  Mr.  Justice  Buller,  for  the  murder 

*  Reg.  V.  Graham,  tit  supra. 
16 


242  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

of  Sir  Theodosius  Boiighton,  his  brother-in-law,  a  young 
man  of  fortune,  twenty  years  of  age,  who  up  to  the  mo- 
ment of  his  death  had  been  in  good  health  and  spirits, 
with  the  exception  of  a  trifling  venereal  ailment,  for 
which  he  occasionally  took  a  laxative  draught.  Mrs.  Do- 
nellan  was  the  sister  of  the  deceased,  and  together  with 
Lady  Boughton,  his  mother,  lived  with  him  at  Lawford 
Hall,  the  famil}^  mansion.  On  attaining  twenty-one,  Sir 
Theodosius  would  have  been  entitled  absolutely  to  an 
estate  of  £2000  per  annum,  the  greater  part  of  which, 
in  the  event  of  his  dying  under  that  age,  would  have 
descended  to  the  prisoner's  wife.  For  some  time  before 
the  death  of  Sir  Theodosius,  the  prisoner  had  on  several 
occasions  falsely  represented  his  health  to  be  very  bad, 
and  his  life  to  be  precarious,  and  not  worth  a  year's  pur- 
chase, though  to  all  appearances  he  was  well  and  in  good 
health.  On  the  29th  of  August  the  apothecary  in  at- 
tendance sent  him  a  mild  and  harmless  draught,  to  be 
taken  the  next  morning.  In  the  evening  the  deceased 
was  out  fishing,  and  the  prisoner  told  his  mother  that  he 
had  been  out  with  him,  and  that  he  had  imprudentl}^  got 
his  feet  M^et,  both  of  which  representations  were  false. 
When  he  was  called  on  the  following  morning,  he  was 
in  good  health ;  and  about  seven  o'clock  his  mother 
went  to  his  chamber  for  the  purpose  of  giving  him  his 
draught,  of  the  smell  and  nauseousness  of  which  he  im- 
mediately complained,  and  she  remarked  that  it  smelt 
like  bitter  almonds.  In  about  two  minutes  he  struggled 
very  much,  as  if  to  keep  the  medicine  down,  and  Lady 
Boughton  observed  a  gurgling  in  his  stomach ;  in  ten 
minutes  he  seemed  inclined  to  doze,  but  in  five  minutes 
afterwards  she  found  him  with  his  eyes  fixed,  his  teeth 
clenched,  and  froth  running  out  of  his  mouth,  and  within 


PROOF  OF  THE  CORPUS  DELICTI.  243 

half  an  hour  after  taking  the  draught  he  died.  Lady 
Boughton  ran  down  stairs  to  give  orders  to  a  servant  to 
go  for  the  apothecary,  who  lived  about  three  miles  dis- 
tant ;  and  in  less  than  five  minutes  the  prisoner  came 
into  the  bedroom,  and  after  she  had  given  him  an  ac- 
count of  the  manner  in  which  Sir  Theodosius  had  been 
taken,  he  asked  where  the  physic-bottle  was,  and  she 
showed  him  the  two  bottles.  The  prisoner  then  took  up 
one  of  them  and  said,  "  Is  this  it  ?  "  and  being  answered 
"  Yes,"  he  poured  some  water  out  of  the  water-bottle, 
which  was  near,  into  the  phial,  shook  it,  and  then  emp- 
tied it  into  some  dirty  water,  which  was  in  a  wash-hand 
basin.  Lady  Boughton  said,  "  You  should  not  meddle 
with  the  bottle ;"  upon  which  the  prisoner  snatched  up 
the  other  bottle  and  poured  water  into  that  also,  and 
shook  it,  and  then  put  his  finger  to  it  and  tasted  it. 
Lady  Boughton  again  asked  what  he  was  about,  and  said 
he  ought  not  to  meddle  with  the  bottles ;  on  which  he 
replied  he  did  it  to  taste  it,  though  he  had  not  tasted  the 
first  bottle.  The  prisoner  ordered  a  servant  to  take  away 
the  basin,  the  dirty  things,  and  the  bottle's,  and  put  the 
bottles  into  her  hands  for  that  purpose ;  she  put  them 
down  again  on  being  directed  by  Lady  Boughton  to  do 
so,  but  subsequently,  while  Lady  Boughton's  back  was 
turned,  removed  them  on  the  peremptory  order  of  the 
prisoner.  On  the  arrival  of  the  apothecary,  the  prisoner 
said  the  deceased  had  been  out  the  preceding  evening, 
fishing,  and  had  taken  cold,  but  he  said  nothing  of  the 
draught  which  he  had  taken.  The  prisoner  had  a  still 
in  his  own  room,  which  he  had  used  for  distilling  roses ; 
and  a  few  days  after  the  death  of  Sir  Theodosius  he 
brought  it,  full  of  wet  lime,  to  one  of  the  servants,  to  be 
cleaned.     The  prisoner  made  several  false  and  inconsist- 


'244  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

ent  statements  to  the  servants  and  others  as  to  the  cause 
of  the  young  man's  death,  attributing  it  at  one  time  to 
his  having  been  out  late,  fishing,  and  getting  his  feet 
wet,  and  at  another  to  the  bursting  of  a  blood-vessel, 
and  again  to  the  malady  for  which  he  was  under  treat- 
ment, and  the  medicine  given  to  him.  On  the  day  of 
his  death  he  wrote  to  Sir  William  Wheeler,  his  guardian, 
to  inform  him  of  the  event,  but  made  no  reference  to  its 
suddenness.  The  coffin  was  soldered  up  on  the  fourth 
day  after  the  death.  Two  days  afterwards,  Sir  William, 
in  consequence  of  the  rumors  which  had  reached  him  of 
the  manner  of  his  friend's  death,  and  that  suspicions 
were  entertained  that  he  had  died  from  the  effects  of 
poison,  wrote  a  letter  to  the  prisoner,  requesting  that  an 
examination  might  take  place,  and  mentioning  the  gen- 
tlemen by  whom  he  wished  it  to  be  conducted.  He  ac- 
cordingly sent  for  them,  but  did  not  exhibit  Sir  William 
Wheeler's  letter,  alluding  to  the  suspicion  that  the  de- 
ceased had  been  poisoned,  nor  did  he  mention  to  them 
that  they  were  sent  for  at  his  request.  Having  been 
induced  by  the  prisoner  to  suppose  the  case  to  be  one 
of  ordinary  sudden  death,  and  finding  the  body  in  an 
advanced  state  of  putrefaction,  the  medical  gentlemen 
declined  to  make  the  examination,  on  the  ground  that 
it  might  be  attended  with  personal  danger.  On  the  fol- 
lowing day  a  medical  man,  who  had  heard  of  their  refusal 
to  examine  the  body,  ofTered  to  do  so ;  but  the  prisoner 
declined  his  offer,  on  the  ground  that  he  had  not  been 
directed  to  send  for  him.  On  the  same  day  the  prisoner 
wrote  to  Sir  William  a  letter,  in  which  he  stated  that 
the  medical  men  had  fully  satisfied  the  ffimily,  and  en- 
deavored to  account  for  the  event  by  the  ailment  under 
which  the  deceased  had  been  suffering ;  but  he  did  not 


PROOF  OF  THE  CORPUS  DELICTI.  245 

state  that  they  had  not  made  the  examination.  Three 
or  four  days  afterwards,  Sir  William,  having  been  in- 
formed that  the  body  had  not  been  examined,  wrote  to 
the  prisoner  insisting  that  it  should  be  done,  which,  how- 
ever, he  prevented,  by  various  disingenuous  contrivances, 
and  the  body  was  interred  without  examination.  In  the 
meantime,  the  circumstances  having  become  known  to 
the  coroner,  he  caused  the  body  to  be  disinterred  and 
examined  on  the  eleventh  day  after  death.  Putrefaction 
was  found  to  be  far  advanced ;  and  the  head  was  not 
opened,  nor  the  bowels  examined,  and  in  other  respects 
the  examination  was  incomplete.  When  Lady  Boughton, 
in  giving  evidence  before  the  coroner's  inquest,  related 
the  circumstance  of  the  prisoner  having  rinsed  the  bot- 
tles, he  was  observed  to  take  hold  of  her  sleeve,  and  en- 
deavor to  check  her ;  and  he  afterwards  told  her  that 
she  had  no  occasion  to  have  mentioned  that  circumstance, 
but  only  to  answer  such  questions  as  were  put  to  her ; 
and  in  a  letter  to  the  coroner  and  jury,  he  endeavored 
to  impress  them  with  the  belief  that  the  deceased  had 
inadvertently  poisoned  himself  with  arsenic,  which  he 
had  purchased  to  kill  fish.  Experiments  made  by  the 
administration  of  laurel-water  on  various  animals  pro- 
duced convulsions  and  sudden  death,  and  on  opening- 
one  of  them  a  strong  smell  of  laurel-water  was  perceived. 
Upon  the  trial,  four  medical  men,  three  physicians  and 
an  apothecary,  were  examined  on  the  part  of  the  pros- 
ecution, and  expressed  a  very  decided  opinion,  mainly 
grounded  upon  the  symptoms,  the  suddenness  of  the 
death,  the  post-mortem  appearances,  the  smell  of  the 
draught  as  observed  by  Lady  Boughton,  and  the  similar 
effects  produced  by  experiments  upon  animals,  that  the 
deceased  had  been  poisoned  with  laurel- water ;  and  one 


246  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

of  them  stated  that,  on  opening  the  body,  he  had  been 
affected  with  a  peculiar  biting,  acrimonious  taste  in  the 
hands  and  mouth,  like  that  which  affected  him  in  all 
the  subsequent  experiments  with  laurel-water.  An  em- 
inent surgeon  and  anatomist  examined  on  the  part  of 
the  prisoner,  stated  a  positive  opinion  that  the  symp- 
toms did  not  necessarily  lead  to  the  conclusion  that  the 
deceased  had  been  poisoned,  and  that  the  appearances 
presented  upon  dissection  explained  nothing  but  putre- 
faction. 

Mr.  Justice  Buller,  in  his  charge  to  the  jury,  called 
their  attention  to  the  suddenness  of  the  death  immedi- 
ately after  the  administration  of  a  draught  by  the  pris- 
oner, to  the  opinions  of  the  medical  witnesses  that  there 
was  nothing  to  lead  them  to  attribute  death  to  any  other 
cause  than  that  draught,  to  the  prisoner's  misrepresen- 
tationg  as  to  the  deceased's  state  of  health  at  a  time 
when  he  appeared  to  others  to  be  in  good  health  and 
spirits,  to  his  contrivances  to  prevent  the  examination 
of  the  body,  and  emphatically  to  the  fact  of  his  having 
rinsed  out  the  bottle  from  which  the  draught  had  been 
taken,  "  which,"  said  the  learned  judge,  '•'  does  carry 
with  it  strong  marks  of  knowledge  by  him  that  there 
was  something  in  that  bottle  which  he  wished  should 
never  be  discovered;"  and  finally,  to  his  attempts  to 
check  the  witness  who  spoke  to  that  circumstance  while 
giving  her  evidence  before  the  coroner.  The  prisoner 
was  convicted  and  executed. 

This  trial  has  given  rise  to  much  difference  of  opinion, 
and  assuredly  the  scientific  evidence  was  very  imperfect 
and  unsatisfactory.  But  the  manner  in  which  death  oc- 
curred, at  the  very  instant  of  taking  the  draught  from 
the  hand  of  the  prisoner,  was  all  but  conclusive  that  it 


PROOF  OF  THE  CORPUS  DELICTI.  247 

contained  some  poisonous  ingredient  which  was  the  cause 
of  death ;  and  though  the  mere  coincidence  of  the  two 
♦neuts  would  not  alone  have  been  exclusive  of  the  hy- 
pothesis of  a  sudden  death  from  accident  or  natural 
cause,  the  conjunction  of  those  events  with  so  many  cir- 
cumstances of  moral  conduct  of  deep  inculpatory  import, 
could  admit  of  explanation  only  on  the  hypothesis  of  the 
prisoner's  guilt.  It  is  impossible  to  regard  those  cir- 
cumstances in  any  other  light  than  as  the  necessary 
indications,  on  th6  ordinary  principles  of  human  nature, 
of  the  moral  causal  origin  of  the  fatal  catastrophe.* 

Robert  Sawle  Donnall,  a  surgeon  and  apothecary, 
was  tried  at  Launceston  Spring  Assizes,  1817,  before 
Mr.  Justice  Abbott,  for  the  murder  of  Mrs.  Elizabeth 
Downing,  his  mother-in-law. 

The  prisoner  and  the  deceased  were  next-door  neigh- 
l)ors,  and  lived  upon  friendly  terms ;  and  there  was  no 
suggestion  of  malice,  nor  could  any  motive  be  assigned 
which  could  have  induced  the  prisoner  to  commit  such 
an  act,  except  that  he  was  in  somew^hat  straitened  cir- 
cumstances, and  in  the  event  of  his  mother-in-law's  death 
^vould  have  become  entitled  to  a  share  of  her  property. 
On  the  19th  of  October  the  deceased  drank  tea  at  the 
prisoner's  house,  which  was  handed  to  her  by  him,  and 
returned  home  much  indisposed,  retching  and  vomiting, 
with  a  violent  cramp  in  her  legs,  from  which  she  did  not 
recover  for  several  days.  About  a  fortnight  afterwards, 
after  returning  from  church,  and  dining  at  home  on 
boiled  rabbits  smothered  with  onions,  upon  the  invita- 
tion of  her  daughter  she  drank  tea  in  the  evening  at  the 

*  The  account  of  this  case  in  "  The  Theory  of  Presumptive  Proof"  suppresses 
many  of  the  most  important  facts,  and  is  in  other  respects  partial,  garbled  and 
inaccurate:  the  strictures  upon  the  trial  are  most  unfair,  and  the  book  itself  is 
utterly  unworthy  of  the  author  to  whom  it  is  commonly  ascribed. 


248  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

prisoner's  house,  with  a  family  party.  The  prisoner  on 
this  occasion  also  handed  to  the  deceased  cocoa  and 
bread  and  butter,  proceeding  towards  her  chair  by  a  cir- 
cuitous route ;  but  it  was  stated  to  have  been  his  habit 
to  serve  his  visitors  himself,  and  not  to  allow  them  to 
rise  from  their  chairs.  When  Mrs.  Downing  had  drunk 
about  half  of  her  second  cup,  she  complained  of  sickness 
and  went  home,  where  she  was  seized  with  retching  and 
vomiting,  attended  with  frequent  cramps ;  and  then  a 
violent  purging  took  place,  and  at  eight  o'clock  the  next 
morning  she  died.  None  of  the  other  persons  who  had 
been  present  on  either  of  these  occasions  were  taken  ill. 
To  a  physician  called  in  by  the  prisoner  two  or  three 
hours  before  her  death,  he  stated  that  she  had  had  an 
attack  of  cholera  morhus.  The  nervous  coat  of  the  stom- 
ach was  found  to  be  partially  inflamed  or  stellated  in 
several  places,  and  the  villous  coat  was  softened  by  the 
action  of  some  corrosive  substance ;  the  blood-vessels 
of  the  stomach  were  turgid,  and  the  intestines,  particu- 
larly near  the  stomach,  inflamed.  The  contents  of  the 
stomach  were  placed  in  a  jug,  in  a  room  to  which  the 
prisoner  (to  whom  at  that  time  no  suspicion  attached) 
had  access,  for  examination,  but  he  clandestinely  threw 
them  into  another  vessel  containing  a  quantity  of  water. 
The  prisoner  proposed  that  the  body  should  be  interred 
on  the  following  Wednesday,  assigning  as  a  reason  for 
so  early  an  interment  that  from  the  state  of  the  corpse 
there  would  be  danger  from  keeping  it  longer.  This 
representation  was  entirely  untrue.  He  also  evinced 
much  eagerness  to  accelerate  the  funeral,  urging  the  per- 
son who  had  the  charge  of  it,  and  the  men  who  were 
employed  in  making  the  vault,  to  unusual  exertions. 
The  physician  called  in  to  the  deceased  concluded,  from 


PROOF  OF  THE  CORPUS  DELICTI.  1^49 

the  symptoms,  the  shortness  of  the  illness,  and  the  mor- 
bid appearances,  that  she  had  died  from  the  effect  of 
some  active  poison ;  and  in  order  to  discover  the  par- 
ticular poison  supposed  to  have  been  used,  he  applied  to 
the  contents  of  the  stomach  the  tests  of  the  ammoniacal 
sulphate  of  copper,  or  common  blue  vitriol,  and  the  am- 
moniacal  nitrate  of  silver,  or  lunar  caustic,  in  solution, 
which  severally  yielded  the  characteristic  appearances  of 
arsenic,  the  sulphate  of  copper  producing  a  green  pre- 
cipitate, whereas  a  blue  precipitate  is  formed  if  no  arsenic 
is  present,  and  the  nitrate  of  silver  producing  a  yellow 
precipitate,  instead  of  a  white  precipitate,  resulting  if  no 
arsenic  is  present.  He  stated  that  he  considered  these 
tests  conclusive  and  infallible,  and  that  he  had  used  them 
because  they  would  detect  a  minuter  portion  of  arsenic  ; 
on  which  account  he  considered  them  to  be  more  proper 
for  the  occasion,  as,  from  the  smallness  of  the  quantity, 
from  the  frequent  vomitings  and  purgings,  and  the  ap- 
pearances of  the  tests,  he  found  there  could  not  be  much. 
Concluding  that  bile  had  been  taken  into  the  stomach, 
he  mixed  some  bile  with  water,  and  applied  to  the  mix- 
ture the  same  tests,  but  found  no  indication  of  the 
presence  of  arsenic ;  from  which  he  inferred  that  the 
presence  of  bile  would  not  alter  the  conclusion  which  he 
had  previously  drawn.  Having  been  informed  that  the 
deceased  had  eaten  onions,  he  boiled  some  in  water;  and 
after  pouring  off  the  water  in  which  they  were  boiled,  he 
poured  boiling  water  over  them  and  left  them  standing 
for  some  time,  after  which  he  applied  the  same  tests  to 
the  solution  thus  procured,  and  ascertained  that  it  did 
not  produce  the  characteristic  appearances  of  arsenic. 
The  witness,  upon  his  cross-examination,  admitted  that 
the  symptoms  and  appearances  were  such  as  might  have 


250  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

been  occasioned  by  some  other  cause  than  poisoning ; 
that  the  reduction  test  would  have  been  infallible ;  and 
that  it  might  have  been  adopted  in  the  jfilrst  instance, 
and  might  also  have  been  tried  upon  the  matter  which 
had  been  used  for  the  other  experiments.  Upon  his  re- 
examination he  accounted  for  his  omission  of  the  reduc- 
tion test  by  stating  that  the  quantity  of  matter  left  after 
the  frequent  vomitings  and  the  other  experiments  would 
have  been  too  small,  and  that  it  would  not  have  been  so 
correct  to  use  the  matter  which  had  been  subjected  to 
the  preceding  experiments. 

Several  medical  witnesses  called  on  the  part  of  the  pris- 
oner stated  that  the  symptoms  and  morbid  appearances, 
though  they  were  such  as  might  and  did  commonly  de- 
note poisoning,  did  not  exclude  the  possibility  that  death 
might  have  been  occasioned  by  cholera  morhus  or  some 
other  disease ;  that  the  tests  which  had  been  resorted  to 
were  fallacious,  since  they  had  produced  the  same  charac- 
teristic appearances  upon  their  application  to  innocent 
matter,  namely,  the  sulphate  of  copper  a  green,  and  the 
nitrate  of  silver  a  yellow  precipitate,  on  being  applied 
to  an  infusion  of  onions ;  and  that  the  experiment  with 
the  bile  was  also  fallacious,  since  from  the  presence  of 
phosphoric  acid,  which  is  contained  in  all  the  fluids  of 
the  human  body,  the  same  colored  precipitate  would  be 
thrown  down  by  putting  lunar  caustic  into  a  solution  of 
phosphate  of  soda.  The  learned  judge,  in  his  charge  to 
the  jury,  said  that  none  of  the  evidence  of  the  witnesses 
for  the  prisoner  went  to  show  that  the  tests  employed  by 
the  medical  witnesses  on  the  other  side  would  not  prove 
that  arsenic  was  there  if  it  were  really  there ;  that  the 
experiments  made  by  the  witnesses  for  the  prisoner  were 
made  with  onions  in  a  different  state  from  what  onions 


PROOF  OF  THE  CORPUS  DELICTI.  251 

boiled  with  rabbits  are,  as  by  that  mode  could  be  got  a 
great  portion  of  the  juice  or  strength  of  the  onions,  in 
water,  whereas  in  regard  to  onions  prepared  for  the  table, 
or  boiled  with  a  considerable  quantity  of  water,  a  good 
portion  of  their  juice  is  withdrawn  from  them ;  that  as 
to  the  experiment  with  the  bile,  if  there  were  no  phos- 
phoric acid  in  the  stomach  of  the  deceased,  or  no  quan- 
tity of  it  sufficient  to  produce  that  appearance,  whatever 
might  have  been  the  appearance  if  sufficient  were  put  in, 
then  the  experiment  was  tried  on  something  that  did  not 
contain  a  sufficient  quantity  of  that  matter ;  that  although 
the  same  result  might  be  produced  by  that  matter  if  there, 
yet  if  there  is  no  reason  to  suppose  that  that  matter  was 
there,  or  there  in  sufficient  quantity,  then  he  thought  the 
suspicion  that  arsenic  was  there  was  very  strong.  His 
lordship  also  said,  "  If  the  evidence  as  to  the  opinions 
of  the  learned  persons  who  have  been  examined  on  both 
sides  should  lead  you  to  doubt  whether  you  should  at- 
tribute the  death  of  the  deceased  to  arsenic  having  been 
administered  to  her,  or  to  the  disease  called  cholera  mor- 
bus, then  as  to  this  question  as  well  as  to  the  other 
question  the  conduct  of  the  prisoner  is  most  material 
to  be  taken  into  consideration ;  for  he,  being  a  medical 
man,  could  not  be  ignorant  of  many  things  as  to  w^hich 
ignorance  might  be  shown  in  other  persons  :  he  could 
hardly  be  ignorant  of  the  proper  mode  of  treating  cholera 
morbus ;  he  could  not  be  ignorant  that  an  early  burial 
was  not  necessary ;  and  when  an  operation  was  to  be 
performed  in  order  to  discover  the  cause  of  the  death, 
he  should  not  have  shown  a  backwardness  to  acquiesce 
in  it ;  and  when  it  was  performing,  and  he  attending,  he 
could  not  surely  be  ignorant  that  it  was  material  for  the 
purposes  of  the  investigation  that  the  contents  of  the 


252  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

stomach  should  be  preserved  for  minute  examination."* 
His  lordship  -also  said,  "  The  conduct  of  the  prisoner, 
his  eagerness  in  causing  the  body  to  be  put  into  a  shell, 
and  afterwards  to  be  speedily  interred,  was  a  circumstance 
most  material  for  their  consideration,  with  reference  to 
both  the  questions  he  had  stated ;  for  although  the  ex- 
amination of  the  body  in  the  way  set  forth,  and  the  ex- 
periments that  were  made,  might  not  lead  to  a  certain 
conclusion  as  to  the  charge  stated,  that  the  deceased  got 
her  death  by  poison  administered  to  her  by  the  prisoner, 
yet  if  the  prisoner  as  a  medical  man  had  been  so  wicked 
as  to  administer  that  poison,  he  must  have  known  that 
the  examination  of  the  body  would  divulge  it."^  Not- 
withstanding this  adverse  charge  of  the  learned  judge, 
the  prisoner  was  acquitted. 

A  medical  man  was  tried  for  the  murder  of  his  wife, 
by  the  administration  of  prussic  acid.  They  left  their 
place  of  residence  at  Sunderland,  on  a  journey  of  pleasure 
to  London,  where  they  arrived  on  the  4th  of  June,  and 
went  into  lodgings.  On  the  morning  of  the  8th,  being 
the  Saturday  after  their  arrival  in  town,  the  prisoner  rang 
the  bell  for  some  hot  water,  a  tumbler,  and  a  spoon,  and 
he  and  his  wife  were  heard  conversing  in  their  chamber. 
About  a  quarter  before  eight  he  called  the  landlady  up- 
stairs, saying  that  his  wife  was  very  ill,  and  she  found 
her  lying  motionless  on  the  bed,  with  her  eyes  shut  and 
her  teeth  closed,  and  foaming  at  the  mouth.  The  pris- 
oner said  she  had  had  fits  before,  but  none  like  this, 
and  that  she  would  not  come  out  of  it ;  and  on  being 
urged  to  send  for  a  doctor,  he  said  he  was  a  doctor  him- 
self, and  should  have  let  blood  before,  but  that  there  was 

a  Frazer's  Short-band  Hep.,  161. 
»  lb.  170. 


PROOF  OF  THE  CORPUS  DELICTI.  253 

no  pulse,  and  that  this  was  an  affection  of  the  heart,  and 
that  her  mother  died  in  the  same  way  nine  months  be- 
fore, and  he  put  her  feet  and  hands  in  warm  water,  and 
applied  a  mustard  plaster  to  her  chest.  In  the  mean- 
time a  medical  man  was  sent  for,  but  she  died  before 
his  arrival.  There  was  a  tumbler  close  to  the  head  of  the 
bed,  about  one-third  full  of  a  clear  white  fluid,  and  un 
empty  tumbler  on  the  other  side  of  the  table,  and  a  paper 
of  Epsom  salts.  In  reply  to  a  question  from  the  medical 
man,  the  prisoner  stated  that  the  deceased  had  taken 
nothing  but  a  little  salts.  On  the  same  morning  he 
ordered  a  grave  for  interment  on  the  Tuesday  following. 
The  contents  of  the  stomach  were  found  to  contain  prussic 
acid  and  Epsom  salts  ;  and  it  was  deposed  that  the  symp- 
toms were  similar  to  those  of  death  by  prussic  acid,  but 
they  might  be  the  effect  of  any  powerful  sedative  poison, 
and  that  the  means  resorted  to  by  the  prisoner  w^ere  not 
likely  to  promote  recovery,  but  that  artificial  respiration 
and  stimulants  were  the  appropriate  remedies,  and  might 
probably  have  been  effectual.  The  prisoner  had  pur- 
chased prussic  acid  and  acetate  of  morphine  on  the  pre- 
vious day,  from  a  vender  of  medicines  with  whom  he  was 
intimate,  and  he  had  been  in  the  habit  of  using  these 
poisons,  under  advice,  for  a  complaint  in  the  stomach. 
Two  days  after  the  fatal  event,  he  stated  to  the  medical 
man  who  had  been  called  in  that  on  the  morning  in 
question  he  was  about  to  take  some  prussic  acid  ;  that  on 
endeavoring  to  remove  the  stopper  he  had  §ome  diffi- 
culty, and  used  some  force  with  the  handle  of  a  tooth- 
brush ;  that  the  neck  of  the  bottle  was  broken  by  the 
force,  and  some  of  the  acid  spilt ;  that  he  placed  the  re- 
mainder in  the  tumbler,  and  went  into  the  front  room  to 
fetch  a  bottle  in  which  to  place  the  acid,  but  instead  of 


254  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

doing  so,  began  to  write  to  his  friends  in  the  country, 
when  in  a  few  minutes  he  heard  a  scream  from  his  wife's 
bedroom ;  that  he  immediately  went  to  her ;  that  she 
exclaimed  that  she  had  taken  some  hot  drink,  and  called 
for  cold  water,  and  that  the  prussic  acid  was  undoubtedly 
the  cause  of  her  death.  Upon  being  asked  what  he  had 
done  with  the  bottle,  he  said  he  had  destroyed  it,  and 
assigned  as  the  reason  why  he  had  not  mentioned  the 
circumstances  before,  that  he  was  distressed  and  ashamed 
at  the  consequences  of  his  negligence.  According  to 
the  opinions  of  the  medical  witnesses,  after  the  scream 
or  shriek,  volition  and  sensibility  must  have  ceased,  and 
speech  would  have  been  impossible.  To  various  persons 
in  the  north  of  England  the  prisoner  wrote  false  accounts 
of  his  wife's  state  of  health.  In  one  of  them,  dated  from 
the  Euston  Hotel,  the  6th  of  June,  he  stated  that  she  was 
unwell,  and  had  two  medical  gentlemen  attending  her, 
and  that  he  was  apprehensive  of  a  miscarriage.  In  an- 
other, dated  the  8th,  he  stated  that  he  had  had  her  re- 
moved to  private  lodgings,  where  she  was  under  the  care 
of  two  medical  men,  dangerously  ill ;  that  symptoms  of 
premature  labor  had  come  on,  and  that  one  of  the 
medical  men  pronounced  her  heart  to  be  diseased.  At 
the  date  of  this  letter  his  wife  was  cheerful  and  well,  and 
all  these  statements  respecting  her  health  were  false ;  and 
in  fact  they  had  gone  into  lodgings  on  their  arrival  in 
London  on  the  4th.  In  a  letter,  dated  the  9th,  he  stated 
the  fact  ,of  her  death,  but  without  any  allusion  to  the 
cause  of  it ;  which  suppression,  in  a  subsequent  letter,  he 
stated  to  have  been  caused  by  the  desire  of  concealing  the 
shame  and  reproach  of  his  negligence.  His  statement 
to  his  landlady  that  his  mother-in-law  had  died  from 
disease  of  the  heart  was  a  falsehood,  he  himself  having 


PROOF  OF  THE  CORPUS  DELICTI.  255 

certified  to  the  registrar  of  burials  tluit  bilious  fever  was 
the  cause  of  her  death.  The  deceased  was  entitled  to 
some  leasehold  property,  to  which  the  prisoner  would 
become  entitled  absolutely  if  he  survived  her,  and  to  a 
copyhold  estate  which  was  limited  to  the  joint  use  of  her- 
self and  her  husband,  so  that  the  survivor  would  take  the 
absolute  interest.  The  motive  suggested  for  the  commis- 
sion of  the  alleged  murder  was,  that  the  prisoner  might 
become  at  once  the  absolute  owner  of  his  wife's  property. 
Mr.  Baron  Gurney  said  that  this  case  differed  from 
almost  every  other  case  he  had  ever  known,  in  this  cir- 
cumstance, that  generally  there  was  a  difficulty  in  ascer- 
taining whether  the  death  had  been  caused  by  poison, 
and  whether  the  poison  came  from  the  hands  of  the  per- 
son charged  with  the  crime ;  but  that  in  this  case  there 
could  be  no  doubt  that  the  deceased  had  come  to  her 
death  by  a  poison  most  certain,  fatal,  and  speedy  in  its 
effects,  and  that  it  was  equally  certain  that  it  came  from 
the  hands  of  the  prisoner.  It  had  been  proved  beyond 
all  doubt  that  the  prisoner  had  bought  the  poison,  and 
had  placed  or  left  it  unprotected  in  the  chamber  of  his 
wife,  and  the  question  was,  whether,  she  having  died 
from  poison,  it  had  been  administered  to  her  by  his  hand, 
or  whether  he  had  purposely  placed  it  in  her  way  in  or- 
der that  she  might  herself  take  it.  The  secrets  of  all 
hearts  were  known  to  God  alone,  and  human  tribunals 
could  only  judge  of  those  secrets  from  the  conduct  of 
the  individual  at  the  time.  In  this  case,  the  jury  had 
the  conduct  of  the  prisoner,  his  words,  his  writing,  his 
demeanor,  proved  before  them,  and  it  would  be  for  them 
to  decide,  upon  the  whole  case,  whether  they  believed 
he  had  administered  the  poison,  or  placed  it  within  the 
reach  of  the  deceased  in  order  that  she  might  take  it. 


256  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

If  he  had  done  either  of  those  things,  he  wouhl  be  guilty 
of  murder ;  if  they  thought  he  had  acted  incautiously 
and  negligently  by  leaving  the  poison  in  the  way  he  had 
done,  he  had  not  been  guilty  of  murder.  He  dwelt  upon 
the  circumstances  that  the  parties  had  lived  for  a  year 
and  a  half  together  upon  terms  of  mutual  affection,  that 
the  marriage  took  place  with  the  consent  of  the  lady's 
mother,  with  whom  they  had  lived  till  her  death,  that  the 
visit  to  London  was  well  known  to  their  friends,  and 
that  the  place  to  which  she  was  taken  was  where  he  had 
lodged  before,  and  near  the  residence  of  the  only  two 
persons  with  whom  he  was  acquainted  in  London.  When 
any  person  committed  a  heinous  crime  it  was  usual  and 
natural,  said  the  learned  judge,  to  look  whether  there 
existed  any  adequate  motive  to  the  commission  of  it. 
The  prisoner  being  about  thirty,  and  his  wife  about 
twenty -two  years  of  age,  it  would  be  a  good  deal  to  say 
that  the  desire  to  possess  her  property  should  be  brought 
forward  as  a  great  motive  of  interest  to  excite  to  the 
commission  of  such  a  crime.  Nevertheless,  it  was  some- 
times found,  as  they  could  not  dive  into  the  heart  and 
ascertain  motives,  that  a  grave  crime  might  be  committed, 
although  no  motive  for  it  could  be  found.  Inasmuch  as 
the  great  question  the  jury  had  to  decide  was  the  inten- 
tion of  the  prisoner,  it  should  be  remembered  that  a  man 
was  entitled  to  a  candid  construction  of  his  words  and 
actions,  particularly  if  placed  in  circumstances  of  great 
and  unexpected  difficulty,  and  they  would  take  care  to 
give  what  fair  allowance  they  could  in  putting  a  con- 
struction upon  the  prisoner's  words  and  actions.  He  also 
laid  stress  upon  the  conduct  of  the  prisoner  to  his  wife, 
and  his  general  good  character  for  kindness.  He  could 
not  conceive  the  motive  which  should  have  induced  the 


PROOF   OF   THE    CORPUS   DELICTI.  Z-J  < 

prisoner,  in  the  letter  posted  on  the  6th,  when  his  wiCe 
was  well  and  cheerful,  to  write  so  complete  a  fabrication, 
from  beginning  to  end,  of  her  being  unwell  and  attended 
by  two  medical  men,  and  the  jury  would  observe  that  it 
was  written  on  the  very  day  on  which  the  prisoner  had 
made  arrangements  for  her  residence  with  a  friend,  dur- 
ing his  absence  abroad.  When  the  letter  of  the  8th  was 
written  did  not  appear,  but  it  was  proved  to  have  been 
posted  on  the  evening  of  that  day.  If  it  was  written 
before  the  death,  it  told  against  the  prisoner.  It  con- 
curred with  the  letter  written  on  the  6th,  and  practiced 
the  same  deception,  as  to  the  two  medical  men,  upon 
those  to  whom  it  was  addressed.  The  defence  was,  that 
the  prisoner  had  been  guilty  of  a  lamentable  indiscretion; 
that  a  sudden  event,  fatal  to  his  wife,  had  happened ; 
that  he  was  overpowered  and  overwhelmed  by  the  result 
of  his  own  carelessness,  and  that  he  did  not  like  to  di- 
vulge the  truth.  The  awkward  fact,  however,  was,  that 
in  his  last  letter  he  had  pursued  exactly  the  same  sys- 
tem as  that  adopted  in  the  letter  written  two  days  be- 
fore. They  would  recollect,  with  reference  to  the  letter 
of  the  8th,  that  on  that  day  he  had  more  than  once  ex- 
claimed, "  This  is  all  my  fault."  These  outbreaks  were 
of  some  importance  for  the  consideration  of  the  jury  in 
giving,  as  compared  with  the  letters,  all  indulgent  con- 
sideration to  any  language  used  by  the  prisoner,  after  an 
event  had  occurred  which  placed  him  in  a  situation  of 
difficulty  and  embarrassment.  In  comparing  the  state- 
ment set  up  for  the  defence  with  the  evidence  of  the 
medical  witnesses,  two  things  were  of  a  good  deal  of 
importance.  The  prisoner's  statement  was,  that  when 
he  entered  the  bed-chamber,  his  wife  told  him  what  had 
occurred,  and  that  he  took  the  tumbler  out  of  her  hand. 
17 


258  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

The  medical  men  had  told  the  jury  that  with  the  scream 
that  had  been  spoken  of,  all  volition  and  power  of  speech 
would  cease  ;  but  here  it  must  not  be  forgotten  that  the 
judgment  of  these  gentlemen  must  be  received  with  this 
caution,  that  none  of  them  had  ever  witnessed  the  effect 
of  prussic  acid  on  the  human  frame.  It  was  for  the  jury 
to  decide  whether  they  were  convinced,  beyond  any  rea- 
sonable doubt,  that  the  prisoner  either  administered, 
or  in  effect  caused  to  be  administered,  poison  to  the  de- 
ceased ;  if  on  the  other  hand  they  should  be  of  opinion 
that  he  had  been  merely  guilty  of  indiscretion,  and  that, 
in  consequence  of  the  sudden  and  awful  event  which 
had  occurred,  he  had  been  driven  to  conceal  it  by  false- 
hood, they  would  acquit  him.  No  doubt,  falsehood  often 
placed  persons  having  recourse  to  it  under  awkward  and 
menacing  circumstances.  In  this  case,  falsehood  had 
been  much  resorted  to.  It  was  shown  before  the  death, 
in  the  statement  about  the  tW'O  medical  men  ;  that  false- 
hood was  followed  up  and  repeated  in  the  second  letter ; 
another  falsehood  appeared  in  the  representation  that 
his  mother-in-law,  who  had  died  of  bilious  fever,  as  ap- 
peared by  an  entry  in  the  register  under  his  own  hand, 
had  died  of  disease  of  the  heart.  li  they  thought  the 
case  conclusive,  however  painful  it  might  be,  it  w^ould 
be  their  duty  to  pronounce  the  prisoner  guilty ;  but  if 
they  thought  it  left  in  doubt  and  mystery,  so  that  they 
could  not  safely  proceed,  they  would  remember  that  it 
was  better  that  many  guilty  men  should  escape  than 
that  one  innocent  man  should  perish.  The  prisoner  was 
acquitted.* 

Palmer's  case  is,  perhaps,  the  most  remarkable  one  of 
this  nature  on  record.     The  prisoner  had  been  a  medical 

a  Reg.  V.  Belaney,  C.  C.  C.  Aug.  1844. 


PROOF  OF  THE  CORPUS  DELICTI.  259 

practitioner,  but  had  given  up  his  profession  for  the  pur- 
suits of  the  turf,  in  the  course  of  which  he  became  inti- 
mate with  a  young  man  named  Cook,  who  was  addicted 
to  the  same  pursuits.  By  his  extensive  gambling  trans- 
actions he  became  involved  in  great  pecuniary  difficul- 
ties, and  was  ultimately  driven  to  the  desperate  expe- 
dient of  borrowing  money  at  exorbitant  rates  of  interest, 
and  to  the  commission  of  forgeries  on  a  large  scale.  In 
1855  he  was  indebted  in  about  £20,000,  borrowed  at 
sixty  per  cent,  interest  upon  bills,  all  of  which  bore  the 
forged  acceptances  of  his  mother,  and  secured  in  part  by 
the  assignment  of  a  policy  of  assurance  for  £13,000  on 
the  life  of  his  brother,  who  died  in  August  of  that  year. 
To  this  source  the  prisoner  had  looked  for  relief  from 
his  embarrassments,  but  the  office  having  become  ac- 
quainted with  circumstances  which  induced  them  to 
dispute  the  validity  of  the  policy  on  the  ground  of  fraud, 
declined  to  pay  the  sum  assured ;  and  in  consequence 
the  holder  of  some  of  these  bills  issued  writs  against  the 
prisoner  and  his  mother,  which  was  sent  into  the  coun- 
try, to  be  served  unless  he  should  effect  some  satisfactory 
arrangement.  Exposure,  ruin  and  punishment  thus  be- 
came imminent,  unless  some  means  could  be  devised  of 
averting  the  impending  disclosures.  On  the  loth  of 
November  Cook  won,  by  one  of  his  horses  and  by  bets 
at  Shrewsbury  races,  between  £2000  and  £3000,  of 
which  he  received  £700  or  £800  on  the  course ;  the  re- 
mainder was  payable  in  London,  on  Monday,  the  18th. 
He  was  greatly  excited  by  his  success,  and  the  prisoner 
and  several  other  persons  spent  the  following  evening 
with  him,  after  the  conclusion  of  the  races,  at  his  inn  in 
Shrewsbury.  In  the  course  of  the  evening  the  prisoner 
was  seen  in  the  passage  outside  of  his  own  room,  hold- 


260  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

iiig  up  a  tumbler  to  a  gaslight ;  after  which  he  went, 
with  the  tumbler  in  his  hand,  into  the  room  where  Cook 
and  his  other  friends  were  sitting.  Soon  afterwards, 
on  drinking  some  brandy  and  water,  Cook  became  sud- 
denly ill,  with  violent  vomiting,  and  it  was  necessary  to 
call  in  medical  assistance.  He  said  he  had  been  dosed 
by  the  prisoner,  and  handed  the  money  he  had  about 
him,  between  £700  and  £800,  to  a  friend  to  take  care  of, 
who  returned  it  to  him  the  next  morning,  after  his  recov- 
ery. Notwithstanding  these  suspicious  circumstances, 
such  was  the  prisoner's  influence  over  his  infatuated  vic- 
tim, that  Cook  returned  from  Shrewsbury  to  Rugeley  in 
company  with  him  on  the  evening  of  Thursday,  the  14th, 
when,  on  their  arrival,  the  former  went  to  his  lodgings 
at  the  Talbot  Arms,  and  the  prisoner  to  his  own  house 
opposite.  On  the  Saturday  and  Sunday  the  prisoner 
called  many  times  to  see  Cook,  who  was  repeatedly  taken 
sick  and  ill  after  taking  coffee  and  broth  from  the  hands 
of  the  prisoner.  On  Monday  (the  18th)  he  got  up  much 
1;)etter ;  and  the  prisoner  called  upon  him  early  in  the 
niorning,  but  did  not  see  him  again  until  eight  and  nine 
in  the  evening,  having  in  the  interim,  as  it  turned  out, 
been  to  London.  In  the  course  of  that  evening,  Cook's 
medical  attendant,  who  had  previously  seen  him,  left  at 
the  Talbot  Arms  a  box  of  morphine  pills,  which  was  taken 
into  his  bedroon  and  administered  by  the  prisoner,  soon 
after  Avhich  the  household  was  disturbed  by  screams 
proceeding  from  the  patient's  room,  who  was  found  sit- 
ting up  in  bed,  in  great  agony,  beating  the  bed-clothes, 
gasping  for  breath,  convulsed  with  a  jerking  and  twitch- 
ing motion  all  over  his  body,  and  one  hand  clenched 
and  stiff,  but  conscious,  and  calling  to  those  about  him 
to  send  for  the  prisoner.     In  about  half  an  hour  the 


PROOF  OF  THE  CORPUS  DELICTI.  261 

paroxysm  subsided,  and  he  became  composed.  On  the 
morning  of  Tuesday  (the  19th),  after  taking  coffee  from 
the  hand  of  the  prisoner,  Cook  was  again  affected  with 
violent  vomiting,  which  continued  throughout  the  day  ; 
but  in  the  evening  was  better,  and  in  good  spirits.  About 
seven  o'clock  he  was  visited  by  his  medical  attendant, 
and  the  prisoner  urged  him  to  repeat  the  morphine  pills, 
as  on  the  night  before ;  and  they  went  together  to  the 
surgery,  where  pills  were  prepared  and  delivered  to  the 
prisoner,  who  took  them  away,  and  went  to  Cook's 
room  about  eleven  o'clock,  as  was  intended  and  sup- 
posed, for  the  purpose  of  administering  them  to  him ; 
so  that  he  had  the  opportunity  in  the  interval  of  chang- 
ing them,  which  there  can  be  no  doubt  he  did.  Cook 
strongly  objected  to  take  them,  because  he  had  been 
made  so  ill  the  night  before ;  but  his  objections  were 
overcome  by  the  prisoner,  and  at  length  he  swallowed 
the  pills  presented  to  him.  Soon  after  midnight  he 
became  ill  with  the  same  agonizing  symptoms  as  on  the 
preceding  night,  and  again  desired  that  the  prisoner 
should  be  sent  for.  Such  was  the  rigidity  of  his  limbs 
that  it  was  found  impossible  to  raise  him  up,  and  he 
asked  to  be  turned  over  on  his  side  ;  after  which  the  ac- 
tion of  the  heart  gradually  ceased,  and  in  a  quarter  of  an 
hour  he  was  a  corpse.  When  dead,  the  body  was  bent 
back  like  a  bow,  and  if  it  had  been  placed  upon  a  level 
surface,  it  would  have  rested  upon  the  head  and  heels. 
Upon  receiving  information  of  the  young  man's  death, 
his  stepfather,  who  lived  in  London,  went  to  Rugeley  on 
Friday,  the  22d,  to  make  arrangements  for  his  funeral, 
and  to  inquire  into  the  state  of  his  affairs,  as  well  as  into 
the  circumstances  of  his  illness.  On  stating  to  the  pris- 
oner that  he  understood  he  knew  something  of  his  af- 


262  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

fairs,  he  told  him  that  there  were  £4000  worth  of  bills  of 
the  deceased's  out,  to  which  his  name  was  attached,  and 
that  he  had  got  a  paper  drawn  up  by  a  lawyer,  signed 
by  the  deceased,  to  show  that  he  had  never  received  any 
benefit  from  them.  The  stepfather  then  inquired  if 
there  were  no  sporting  debts  owing  to  him,  to  which  the 
prisoner  said  there  was  nothing  of  the  sort ;  and  on 
asking  about  the  betting-book,  which  could  not  be  found, 
the  prisoner  said  it  would  be  of  no  use  if  found,  as  when 
a  man  dies,  his  bets  are  done  with.  Other  facts  now 
began  to  transpire  throwing  a  sinister  light  upon  the  mys- 
terious events  of  the  last  few  days.  It  was  discovered 
that  the  prisoner  had  procured  three  grains  of  strychnia 
on  the  evening  of  Monday,  and  a  second  quantity  of  six 
grains  on  the  following  day ;  that  he  had  been  seen  to 
search  the  pockets,  and  under  the  pillow  and  bolster  of 
the  unfortunate  man  before  his  body  was  cold ;  that 
although  his  betting-book  was  kept  on  the  dressing-table 
of  the  deceased's  bedroom,  and  was  seen  there  on  the 
previous  night,  it  was  never  seen  after  his  death ;  that  the 
px'isoner  handed  to  a  friend  of  the  deceased  five  guineas 
as  the  whole  of  the  money  that  was  found  belonging  to 
him ;  that  he  had  been  to  London  on  Monday,  the  day 
before  the  death,  and  procured  payment  of  upwards  of 
^£1000  on  account  of  the  wagers  won  by  the  deceased  at 
Shrewsbury,  and  appropriated  the  amount  in  payment 
of  his  own  losses,  and  in  part  payment  of  the  forged 
acceptances  on  which  writs  had  been  issued  ;  that  before 
the  races  he  was  short  of  money,  and  had  borrowed  £25, 
and  lost  largely  at  the  races,  but  had  subsequently  paid 
considerable  sums  to  various  other  creditors ;  that  two 
or  three  days  after  Cook's  death  he  had  endeavored  to 
obtain  the  attestation  by  an  attorney  to  a  forged  acknowl- 


PROOF    OF    THE    CORPUS    DELICTI.  263 

cdgment  in  the  name  of  the  deceased  that  £4000  of 
bills  had  been  negotiated  by  the  prisoner  for  his  benefit, 
and  finally  had  prevailed  upon  the  medical  man  who 
had  attended  the  deceased,  who  was  of  a  very  advanced 
age,  to  certify  that  he  had  died  of  apoplexy.  A  post- 
nwrtem  examination  was  made,  at  which  the  prisoner  was 
present,  and  the  stomach  and  intestines  were  placed  in  a 
jar  to  be  taken  to  London  for  examination.  While  the 
operation  was  going  on,  the  prisoner  pushed  against  the 
medical  men  engaged  in  it,  so  as  to  shake  a  portion  of 
the  contents  of  the  stomach  into  the  body.  The  jar  was 
then  covered  with  parchment,  tied  down,  and  sealed  and 
placed  aside ;  and  while  the  attention  of  the  medical 
men  was  still  engaged  in  examining  the  body,  the  pris- 
oner removed  the  jar  to  a  distance  near  a  door  not  the 
usual  way  out  of  the  room,  and  it  was  found  that  two 
slits  had  been  cut  with  a  knife  through  the  double  skin 
which  formed  the  covering.  The  prisoner  having  learned 
that  the  jar  was  to  be  sent  to  London  the  same  evening, 
offered  the  driver  who  was  to  carry  the  persons  in  charge 
of  it  to  the  railway  station  <£10  to  upset  the  carriage 
and  break  the  jar.  The  analytical  chemists  to  whom  the 
stomach  and  intestines,  and  subsquently  other  parts  of 
the  body  were  sent,  found  traces  of  antimony,  but  none 
of  strychnia,  or  any  other  poison ;  and  sent  their  report 
by  post,  directed  to  the  attorney  at  Rugeley  employed  in 
the  investigation.  The  prisoner  incited  the  postmaster 
to  betray  to  him  the  contents  of  this  report ;  and  wrote 
a  confidential  letter  to  the  coroner,  to  whom  during  the 
course  of  the  inquiry  he  sent  presents  of  fish  and  game, 
stating  that  he  had  seen  it  in  black  and  w^hite  that  no 
strychnia,  prussic  acid,  or  opium  had  been  found,  and 
expressing  his  hope  that  on  the  next  day  to  which  the 


264  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

inquest  stood  adjourned,  the  verdict  would  be  that  of 
death  from  natural  causes.  The  coroner's  jury  found  a 
verdict  of  willful  murder  against  the  prisoner.  Upon  the 
trial  the  chemical  witnesses  examined  on  the  part  of  the 
prosecution  stated  that  the  stomach  and  intestines  were 
received  in  an  unfavorable  state  for  finding  strychnia 
ha^  it  been  there,  the  stomach  having  been  cut  from  end 
to  end,  and  the  contents  gone,  and  the  mucous  surface, 
in  which  any  poison,  if  present,  would  be  found,  lying 
in  contact  with  the  intestines  and  their  succulent  con- 
tents, and  shaken  together ;  that  the  non-discovery  of 
strychnia  was  not  conclusive  that  death  had  not  been 
caused  by  that  poison,  inasmuch  as  they  had  failed  to  dis- 
cover it  in  animals  killed  for  the  purpose  of  experiment; 
that  if  a  minimum  dose  is  administered,  it  disappears  by 
absorption  into  the  blood,  but  that  it  is  discoverable,  and 
had  been  discovered,  when  administered  to  animals  in 
excess  of  the  quantity  required  to  destroy  life,  and  that 
there  is  no  known  process  by  which  it  can  be  discovered 
in  the  tissues,  if  present  there  only  in  a  small  quantity. 
On  the  other  hand,  witnesses  were  called  on  behalf  of 
the  prisoner,  who  disputed  the  theory  of  absorption,  and 
stated  that  strychnia,  if  present,  is  always  discoverable, 
not  only  in  the  blood  and  in  the  stomach  and  intestines 
and  their  contents,  but  also  in  the  tissues ;  that  there 
was  nothing  in  the  condition  of  the  parts  of  the  body 
submitted  to  examination  to  preclude  the  detection  of 
strychnia ;  and  that  if  present  it  might  have  been  found, 
even  if  it  had  been  administered  in  a  minimum  dose, 
though  on  this  latter  point  there  was  some  difference  of 
opinion  among  them.  Numerous  medical  witnesses  of 
the  highest  professional  experience  and  character,  called 
on  the  part  of  the  Crown,  deposed  that  many  of  the 


PROOF    OF    THE    CORPUS    DELICTI.  205 

symptoms,  especially  in  the  progress  and  termination  of 
the  attack,  were  not  those  of  any  of  the  ordinary  forms 
of  tetanus,  idiopathic  or  traumatic,  or  of  any  known  dis- 
ease of  the  human  frame,  but  were  the  peculiar  charac- 
teristics of  poisoning  by  strychnia.  Nor  were  there  in 
these  respects  any  such  differences  between  their  opin- 
ions and  those  of  many  respectable  professional  wit- 
nesses called  on  the  part  of  the  prisoner,  as  might  not 
be  accounted  for  by  the  imperfect  state  of  knowledge 
of  all  the  forms  of  tetanic  affection,  or  by  the  obscuri- 
ties of  physiological  and  pathological  science.  Of  the 
numerous  professional  witnesses  examined  on  behalf  of 
the  prisoner,  some  ascribed  the  symptoms  to  tetanic  af- 
fection ;  others  of  them  to  various  forms  of  disease  from 
which  they  were  shown  to  be  clearly  distinguishable ; 
while  others  again  ascribed  them  to  physical  causes 
absolutely  absurd  and  incredible.  The  contradictions 
and  inconsistencies  in  the  testimony  of  some  of  the  pris- 
oner's witnesses,  and  their  obtrusive  zeal  and  manifest 
purpose  of  obtaining  an  acquittal,  deprived  it  of  all  moral 
effect,  and  drew  down  upon  several  of  them  the  severe 
reprehension  of  the  court.  After  a  protracted  trial  of 
twelve  days,  the  prisoner  was  found  guilty,  and  was 
executed  pursuant  to  his  sentence;''  and  there  is  no 
doubt  that  this  was  only  one  of  several  murders  perpe- 
trated by  this  great  criminal,  by  the  same  nefarious 
means,  for  the  purpose  of  obtaining  money  secured  by 
fraudulent  life  assurances.^ 

*  Short-hand  Report,  m^  supra,  and  Sess.  Pap. 

•>  See  An.  Reg.  1865,  p.  190.  The  technical  nature  of  the  evidence  in  Sinethurst's 
ease,  ut  supra,  would  render  it  inapplicable  in  illustration  of  ler/al  principles,  even 
if  doubt  had  not  been  thrown  upon  the  verdict  by  the  grant  of  a  pardon. 


266  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 


Section  5. 

application  of  the  general  principle  to  proof  of  the 
corpus  delicti  in  cases  of  infanticide. 

Of  the  various  forms  of  criminal  homicide,  that  of  in- 
fanticide, by  V5^hich  is  popularly  understood  the  murder 
of  a  recently  born  infant  for  the  purpose  of  concealing 
its  birth,  perhaps  presents  the  greatest  difficulties  in 
the  establishment  of  the  corpus  delicti. 

(1.)  In  addition  to  the  sources  of  difficulty  and  fallacy 
which  are  incidental  to  charges  of  homicide  in  general, 
there  are  many  circumstances  of  embarrassment  pecu- 
liar to  cases  of  this  nature,  amongst  which  may  be  men- 
tioned the  occasional  uncertainty  and  inconclusiveness  of 
the  symptoms  of  pregnancy,  the  fundamental  fact  to  be 
proved,*  which  may  resemble  and  be  mistaken  for  ap- 
pearances caused  by  obstructions  or  spurious  gravidity .'' 
In  a  remarkable  case  of  imputed  murder  of  an  adult  fe- 
male, the  suspicion  of  pregnancy  arose  principally  from 
the  bulk  of  the  deceased  while  living,  coupled  with  cir- 
cumstances of  conduct  which  denoted  the  existence  of  an 
improper  familiarity  between  the  parties,  and  from  the 
discovery  upon  jjost-mortem  examination  of  what  was 
believed  by  the  witnesses  for  the  prosecution  to  be  the 
placental  marks.  Four  medical  witnesses  expressed  the 
strongest  belief  that  the  deceased  had  been  recently  de- 
livered of  a  child  nearly  come  to  maturity  ;  while  on  the 
other  hand  it  was  proved  that  she  had  been  subject  to 
obstructions  ;  and  it  was  deposed  that  the  appearances  of 

*  Hume's  Comm.  at  supra,  464. 

•»  Rex  V.  Bate,  Warwick  Summer  Assizes,  1809;  Rox  v.  Ferguson,  Burnett's  C.  L. 
Ht  Hupra,  574.  ^ 


PROOF   OF    THE    CORPUS    DELICTI.  267 

the  uterus  might  be  accounted  for  by  hydatids,  a  species 
of  dropsy  in  that  part  of  the  body,  and  that  what  was 
thought  to  be  the  placental  mark  might  be  the  pedicidi 
by  which  they  were  attached  to  the  internal  surface  of 
the  womb."  The  learned  judge  said  to  the  jury,  that  it 
was  a  very  unfortunate  thing,  that  upon  every  particular 
point  they  had  to  rest  upon  conjecture ;  that  it  was  a 
conjecture  to  a  certain  extent  that  the  deceased  was 
with  child,  that  it  was  conjecture  to  a  certain  degree 
that  any  means  were  used  to  procure  abortion ;  and,  if 
they  were  used,  that  it  was  conjecture  that  the  prisoner 
was  privy  to  the  administration  of  them. 

(2.)  It  must  be  clearly  shown  that  a  child  has  been 
born  alive,  and  acquired  an  independent  circulation  and 
existence ;  it  is  not  enough  that  it  has  breathed  in  the 
course  of  its  birth  ;^  but  if  a  child  has  been  wholly  born, 
and  is  alive,  and  has  acquired  an  independent  circula- 
tion, it  is  not  material  that  it  is  still  connected  with  its 
mother  by  the  umbilical  cord,"  nor  is  it  essential  that  it 
should  have  breathed  at  the  time  it  was  killed,  as  many 
children  are  born  alive  and  yet  do  not  breathe  for  some 
time  after  birth. ** 

Whether  a  child  has  been  born  alive  or  not  is  fre- 
quently a  question  of  considerable  difficulty ;  and  it  is 
an  admonitory  consideration,  that  scientific  tests  which 
have  been  considered  as  infallible,  with  the  advance  of 
knowledge  have  been  found  to  be  fallacious.  Such  is 
the  case  with  respect  to  the  hydrostatic  test,  from  the 

»  Rex  V.  Angus,  Lancaster  Autumn  Assizes,  1808,  coram  Mr.  Justice  Chambre, 
Short-hand  Report;  and  see  Burnett's  C.  L.  of  Scotland,  575. 

«>  Re.x  V.  Poolton,  5  C.  A  P.  399;  Rex  v.  Enoch,  ib.  539:  Rex  v.  Crutchley,  7  ib- 
314 ;  Rex  v.  Sellis,  ib.  856. 

«  Reg.  V.  Reeves,  9  ih.  25;  Reg.  v.  Wright,  ('6.  754;  Reg.  v.  Trillue.  1  C.  k  M. 
650. 

■i  Rex  V.  Brain,  6  C.  &  P.  350. 


268  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

indications  of  which  in  former  times  many  women  have 
suffered  the  last  penalty  of  the  law.  On  the  trial  of  a 
woman  at  Winchester  Spring  Assizes,  1835,  it  was 
proved  that  the  lungs  were  inflated ;  which  the  medical 
witness  said  would  not  have  been  the  case  if  the  child 
had  been  still-born ;  but  he  stated,  in  answer  to  a  ques- 
tion from  Mr.  Baron  Gurney,  that  if  the  child  had  died 
in  the  birth,  the  lungs  might  have  been  inflated,  upon 
which  he  stopped  the  case.^  A  single  sob,  it  appears, 
is  sufficient  to  inflate  the  lungs,  though  the  child  died 
in  the  act  of  birth.''  A  young  woman  was  tried  before 
Mr.  Baron  Parke  for  the  murder  of  her  female  child ; 
the  throat  was  cut,  and  the  wound  had  divided  the  right 
jugular  vein ;  the  lungs  floated  in  water,  and  were  found 
on  cutting  them  to  be  inflated ;  but  it  was  deposed  that 
this  test  only  showed  that  the  child  must  have  breathed, 
and  not  that  it  had  been  born  alive,  and  that  there  are 
instances  of  children  being  lacerated  in  the  throat  in  the 
act  of  delivery.  On  the  close  of  the  case  for  the  prose- 
cution, the  learned  judge  asked  the  jury  whether  they 
were  satisfied  that  the  child  was  born  alive,  and  that 
the  wound  was  inflicted  by  the  prisoner  with  the  inten- 
tion of  destroying  life ;  as,  if  they  entertained  any  doubt 
on  these  points,  it  would  be  unnecessary  to  go  into  the 
evidence  on  behalf  of  the  prisoner.  The  jury  returned 
a  verdict  of  acquittal.*' 

(3.)  It  is  a  further  source  of  uncertainty  in  cases  of 
this  nature,  that  circumstances  of  presumption  frequently 
adduced  as  indicative  of  the  crime  of  murder,  may  com- 
monly be  accounted  for  by  the  agency  of  less  malignant 

*  Rex  V.  Simpson,  Cummin  on  the  Proof  of  Infanticide,  40. 
•>  Rex  V.  Davidson,  1  Hume's  Comm.  tit  atipra,  486. 
"  Rex  V.  Grounall,  Worcester  Spring  Assizes,  1837. 


PROOF  OF  THE  CORPUS  DELICTI.         269 

motives.  Concealment  of  pregnancy  and  delivery  may 
proceed  even  from  meritorious  motives ;  as  where  a 
married  woman  resorted  to  such  concealment  in  order  to 
screen  her  husband,  who  was  a  deserter,  from  discovery.* 
Severe  must  be  the  struggle  between  the  opposing  mo- 
tives of  shame  and  affection,  before  a  mother  can  contem- 
plate, and  still  more  so  before  she  can  form  and  execute, 
the  dreadful  and  unnatural  resolution  of  taking  away 
the  life  of  her  own  offspring.  The  unhappy  object  of 
these  conflicting  motives  is  commonly  the  victim  of  bru- 
tality and  treachery.  Deserted  by  a  heartless  seducer, 
and  scorned  by  a  merciless  world,  scarcely  any  condition 
of  human  weakness  can  be  imagined  more  calculated  to 
excite  the  compassion  of  the  considerate  and  humane.'' 
The  wisdom  and  humanity  of  the  legislature,  in  accord- 
ance with  the  spirit  of  the  times,  have  led,  though  tar- 
dily, to  the  repeaP  of  the  cruel  rule  of  presumption  cre- 
ated by  Statute  21  Jac.  I,  c.  27,  and  suggested  by  a 
corresponding  edict  of  Henry  II,  of  France,  which  made 
the  concealment  of  the  birth  of  an  illegitimate  child  by 
its  mother  conclusive  evidence  of  murder,  unless  she 
made  proof  by  one  witness  at  least  that  the  child  was 
born  dead ;  a  rule  which  had  too  long  survived  the  bar- 
barous age  in  which  it  originated,  and  under  which  it 
is  but  too  probable  that  many  women  have  unjustly  suf- 
fered;'* and  the  endeavor  to  conceal  the  birth  of  a  child 
by  secret  burying,  or  otherwise  disposing  of  the  body, 
instead  of  being  treated  as  a  conclusive  presumption  of 
murder,  has  been  made  a  substantive  misdemeanor.® 

»  Rex  V.  Stewart,  Burnett's  C.  L.  ut  supra,  572. 
b  See  1  Hume's  Comm.  462. 
<=  See  1  Hume's  Comm.  486. 
I  St.  43  Geo.  Ill,  c.  58,  s.  3. 
e  St.  9  Geo.  IV,  c.  31,  s.  14. 


270  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

(4.)  The  casualties  which,  even  in  favorable  circum- 
stances, are  inseparable  from  parturition,  must  be  incal- 
culably aggravated  by  the  perplexities  incidental  to 
illegitimate,  clandestine  and  unassisted  birth,  from  the 
impulses  of  shame  and  alarm,  the  desire  of  concealment, 
the  want  of  assistance  and  sympathy,  and  occasionally 
from  the  mother's  inability  to  render  the  attentions 
requisite  to  preserve  infant  life ;  and  there  have  been 
cases  in  which  even  the  very  means  resorted  to,  under 
the  terror  of  the  moment,  to  facilitate  birth,  have  been 
the  unintentional  cause  of  death.  For  these  reasons, 
wounds  and  other  marks  of  violence  are  not  necessarily 
considered  as  indicative  of  willful  injury,  and  are  not, 
therefore,  sufficient  to  warrant  a  conviction  of  murder, 
unless  the  concomitant  circumstances  clearly  manifest 
that  they  were  knowingly  inflicted  upon  a  body  born 
alive.  Nor  are  these  principles  of  construction  peculiar 
to  our  own  law ;  it  is  believed  that  they  prevail  gene- 
rally, if  not  universally,  in  the  application  of  the  crimi- 
nal law  to  cases  of  this  nature.'' 

It  follows  from  these  considerations,  that  though  the 
facts  may  justify  extreme  suspicion  that  death  has  been 
the  result  of  intentional  violence,  yet  if  they  do  not  en- 
tirely exclude  every  other  possible  hypothesis  by  which 
it  may  be  reasonably  accounted  for,  the  soundest  prin- 
ciples of  justice,  and  a  proper  regard  to  the  fallibility  of 
human  judgment  in  cases  so  mysterious  as  these  gene- 
rally are,  combine  to  forbid  the  adoption  of  a  conclusion 
so  abhorrent  to  nature  and  humanity,  and  the  infliction 
of  a  punishment  which  admits  of  no  recall. 

It  has  been  thought  that  in  these  cases  the  feelings  of 
humanity  have  been  permitted  to  bias  the  strict  course 

*  Alison's  Princ.  159. 


PROOF  OF  THE  CORPUS  DELICTI.  271 

of  judicial  truth,  and  that  countenance  has  been  given 
to  subtle  and  strained  hypotheses  for  the  explanation  of 
circumstances  of  conclusive  presumption.*  It  is  to  be 
feared  that  to  some  extent  this  opinion  is  correct,  and  if 
so,  it  is  a  conclusive  proof  that  the  law  is  not  in  har- 
mony with  public  feeling  :  but  it  may  be  doubted  whether 
in  this  reproach  sufficient  weight  has  always  been  given 
to  the  difficulties  inseparably  incidental  to  the  proof  of 
this  crime,  and  whether,  in  fact,  acquittals  take  place  so 
frequently  as  has  been  supposed,  where  it  has  been  so 
clearly  and  satisfactorily  proved  as  entirely  to  dispel  all 
doubt,  and  to  produce  complete  and  undoubting  assur- 
ance. It  is,  however,  well  deserving  of  consideration, 
whether  the  ends  of  public  justice  and  social  protection 
might  not  be  better  promoted  by  the  abolition  of  capital 
punishment  in  a  class  of  cases  in  which  society  will  not 
concur  in  its  infliction,  and  by  the  substitution  of  a  mi- 
nor punishment,  not  only  in  the  case  of  concealment  of 
birth,  but  generally  in  all  cases  where  death  has  been 
caused  by  the  willful  omission  of  the  mother  to  take  the 
necessary  means  for  the  preservation  of  infant  life,^'  so 
as  to  avoid  on  the  one  hand  the  scandal  and  ill-example 
of  acquittals  in  the  face  of  convincing  evidence  of  guilt, 
and  on  the  other,  of  doing  violence  to  public  feeling  by 
the  denunciation  of  capital  punishments  against  a  crime 
which,  atrocious  as  it  is,  is  nevertheless  wanting,  as  an 
eminent  prelate  has  remarked,  "in  all  the  attributes 
which  distinguish  the  murder  of  adults,  viz.,  the  wick- 
edness of  the  motive,  the  danger  to  the  community,  and 
the  feeling  of  alarm  and  insecurity  which  it  occasions." ' 

*  Whately  on  Secondary  Punishments,  108. 
i"  See  Code  Penal  d'Aatriche,  prem.  partie,  ch.  xvi,  art.  122. 

<=  Whately  on  Secondary  Punishments,  p.  108,  App.  No.  2 ;    and  see  Selections 
from  the  Charges,  etc.,  of  Mr.  Baron  Aklerson,  78. 


272  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

The  discussion  and  illustration  of  the  rules  and  prin- 
ciples of  evidence,  in  reference  to  the  proof  of  the  corpus 
delicti,  might  be  extended  to  an  examination  of  their 
application  to  other  offences ;  but  the  subject  has  been 
sufficiently  exemplified  for  the  purpose  of  this  Essay, 
and  such  an  extended  examination  would,  therefore,  be 
superfluous  and  transgress  its  legitimate  limits.  The 
cases  which  have  been  cited  strikingly  exhibit  the  strict 
accordance  between  judicial  practice  and  the  dictates  of 
enlightened  reason. 


CHAPTER  VIII. 

OF   THE    FORCE   AND    EFFECT   OF    CIRCUMSTANTIAT. 
EVIDENCE.— CONCLUSION. 


Section  1. 

general  grounds   of   the   force   of   circumstantial 
evidence. 

In  considering  the  force  and  effect  of  circumstantial 
evidence,  the  credibility  of  the  tedimony,  as  distinguished 
from  the  credibility  of  the/ac^,  is  assumed,  since  it  is  a 
quality  essential  to  the  value  of  circumstantial,  in  com- 
mon with  all  moral,  evidence. 

Our  faith  in  moral  evidence  is  grounded,  as  we  have 
seen,  upon  our  confidence  in  the  permanence  of  the  order 
of  nature,  and  in  the  reality  and  fidelity  of  the  impres- 
sions received  by  means  of  the  senses,  which  place  us  in 
connection  with  the  external  world  and  with  other  men ; 
and  upon  the  laws  of  our  moral  and  intellectual  being, 
the  immutability  of  moral  distinctions,  and  the  authority 
of  conscience ;  *  so  that  if  we  could  correctly  estimate, 
and  were  able  to  eliminate,  the  various  disturbing  in- 
fluences which  tend  to  divert  men  from  the  path  of  truth 
and  rectitude,  our  reasonings  and  conclusions  would  pos- 
sess all  the  force  of  demonstration. 

The  silent  workings,  and  still  more  the  fearful  explo- 
sions, of  human  passion,  which  bring  to  light  the  darker 

»  See  ante,  10. 
18 


274  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

elements  of  man's  nature,  must  ever  present  to  the  phil- 
osophical observer  considerations  of  deep  intrinsic  in- 
terest ;  while  to  the  jurist,  the  moral  and  mechanical  co- 
incidences which  connect  different  facts  with  each  other 
are  relevant  and  all-important,  as  they  are  the  intermedi- 
ate connecting  links  between  criminal  actions  and  the  ma- 
lignant feelings  and  dispositions  in  which  they  originate. 

The  distinct  and  specific  proving  power  of  circumstan- 
tial evidence,  as  incidentally  stated  in  a  former  part  of 
this  Essay,  depends  upon  its  incompatibility  with,  and 
incapability  of  explanation  upon,  any  reasonable  hypoth- 
esis, consistent  with  the  ordinary  course  of  nature,  other 
than  that  of  the  truth  of  the  principal  fact  in  proof  of 
which  it  is  adduced :  *  so  that,  after  the  exhaustion  of 
every  other  possible  and  admissible  mode  of  solution,  we 
must  either  conclude  that  the  accused  has  been  guilty  of 
the  fact  imputed,  or  renounce  as  illusory  and  deceptive 
all  the  results  of  consciousness  and  experience,  and  all 
the  operations  of  the  human  mind.'' 

Conclusions  thus  formed  are  simple  inferences  of  the 
understanding,  aided  and  corrected  by  the  application 
of  those  rules  of  evidence  and  those  processes  of  reason 
which  sound  and  well-ripened  experience  has  consecrated 
as  the  best  methods  of  arriving  at  truth ;  and  they  con- 
stitute that  MORAL  CERTAINTY  upou  which  men  securely 
act  in  all  other  great  and  important  concerns,  and  upon 
which  they  may,  therefore,  safely  rely  for  the  truth  and 
correctness  of  their  conclusions  in  regard  to  those  events 
which  fall  within  the  province  of  criminal  jurisprudence. 

Many  Continental  codes,  following  the  principles  of  the 
civil  law,  prescribe  imperative /orww/<a?  descriptive  of  the 

a  Supra,  p.  28. 

''  Mittermaier,  iit  supra,  ch.  59. 


FORCE    AND   EFFECT   OF   CIRCUMSTANTIAL   EVIDENCE.  275 

kind  and  amount  of  evidence  requisite  to  constitute  legal 
proof.  Those  principles  prevail  also  to  a  certain  extent 
in  the  reception  of  evidence  in  the  ecclesiastical  and  some 
other  courts  of  special  jurisdiction  in  this  country,  so  far 
as  to  require  the  testimony  of  a  plurality  of  witnesses. 
But  the  diversities  of  individual  men  render  it  impracti- 
cable thus  definitely  to  estimate  the  fleeting  shades  and 
infinite  combinations  of  human  motives  and  actions ;  or 
thus  to  fix,  with  arithmetical  exactness,  a  common 
standard  of  proof,  which  shall  influence  with  unvarying 
intensity  and  effect  the  minds  of  all  men  alike.  Such 
restrictive  rules  are  not  merely  harmless,  nor  simply 
superfluous  ;  they  are  in  some  cases  positively  pernicious 
and  dangerous  to  the  cause  of  truth  ;  and  while  they  ope- 
rate as  snares  for  the  conscience  of  the  judge,  obliging 
him  occasionally  to. determine  contrary  to  his  own  con- 
victions of  truth,  they  are  unnecessary  for  the  protection 
of  the  innocent,  and  effective  only  for  the  impunity  of 
the  guilty.*  A  learned  judge  of  one  of  our  ecclesiastical 
courts,  after  commenting  on  the  rule  of  those  courts,  that 
one  witness  is  not  sufficient  to  establish  the  fact  of  adul- 
tery, said,  "  To  this  authority  I  readily  submit,  and  I  am 
bound  to  do  so  ;  but  I  must  honestly  say  that  I  do  it  upon 
compulsion.  I  am  bound  by  this  rule,  and  so  long  as  it 
remains  a  rule  of  these  courts,  so  long  as  more  evidence  is 
required  to  prove  an  act  of  adultery  than  to  find  a  man 
guilty  of  murder,  it  will  be  my  duty  to  obey  that  rule."^ 
The  very  few  cases  in  which  the  law  of  England  re- 
quires a  particular  amount  of  evidence,  as  on  trials  for 
high  treason,  where  two  witnesses  are  required,  and  in 
cases  of  perjury,  where  there  must  be  two  witnesses,  or 

'^  Mittermaier,  nt  supra,  ch.  8. 

^  Per  Dr.  Lushington,  in  Taylor  v.  Taylor,  6  Eccl.  &  Mar.  Case?,  563. 


276  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

the  testimony  of  one  witness  confirmed  by  some  inde- 
pendent corroborative  evidence,  are  obviously  grounded 
upon  different  principles  ;  in  the  former,  upon  motives  of 
policy  and  justice,  for  the  protection  of  persons  charged 
with  political  crime  from  becoming  the  victims  of  party 
violence ;  and  in  the  latter,  because  the  mere  contradic- 
tion by  the  oath  of  a  single  witness  is  obviously  not  of 
itself  sufficient  to  prove  that  the  person  accused  has  been 
guilty  of  willful  falsehood.* 

If  it  be  proved  that  a  party  charged  with  crime  has 
been  placed  in  circumstances  which  commonly  operate  as 
inducements  to  commit  the  act  in  question,  that  he  has 
so  far  yielded  to  the  operation  of  those  inducements  as  to 
have  manifested  the  disposition  to  commit  the  particular 
crime,  that  he  has  possessed  the  requisite  means  and 
opportunities  of  effecting  the  object  of  his  wishes,  that 
recently  after  the  commission  of  the  act  he  has  become 
possessed  of  the  fruits  or  other  consequential  advantages 
of  the  crime,  if  he  be  identified  with  the  corpus  delicti 
by  any  conclusive  mechanical  circumstances,  as  by  the 
impressions  of  his  footsteps,  or  the  discovery  of  any 
article  of  his  ?pparel  or  property  at  or  near  the  scene  of 
the  crime,  if  there  be  relevant  appearances  of  suspicion 
connected  with  his  conduct,  person  or  dress,  and  such  as 
he  might  reasonably  be  presumed  to  be  able,  if  innocent, 
to  account  for,  but  which  nevertheless  he  cannot  or  Avill 
not  explain,  if,  being  put  upon  his  defence  recently  after 
the  crime,  under  strong  circumstances  of  adverse  pre- 
sumption, he  cannot  show  where  he  was  at  the  time  of 
its  commission,  if  he  attempt  to  evade  the  force  of  those 
circumstances  of  presumption  by  false  or  incredible  pre- 

a  See  also  7  &  8  Vict.  c.  101,  s.  3,  and  8  &  9  Vict.  c.  10,  s.  6,  as  to  confirmatory 
evidence  in  orders  of  affiliation. 


FORCE    AND    EFFECT   OF    CIRCUMSTANTLVL    EVIDENCE.   277 

tences,  or  by  endeavors  to  evade  or  pervert  the  course 
of  justice,  the  concurrence  of  all  or  of  many  of  these 
cogent  circumstances,  inconsistent  with  the  supposition 
of  his  innocence  and  unopposed  by  facts  leading  to  a 
counter-presumption,  naturally,  reasonably  and  satisfac- 
torily establishes  the  moral  certainty  of  his  guilt,  if  not 
with  the  same  kind  of  assurance  as  if  he  had  been  seen 
to  commit  the  deed,  at  least  with  all  the  assurance  which 
the  nature  of  the  case  and  the  vast  majority  of  human 
actions  admit.  In  such  circumstances  we  are  justly 
warranted  in  adopting,  without  qualification  or  reserve, 
the  conclusions  to  which,  "  by  a  broad,  general  and  com- 
prehensive view  of  the  facts,  and  not  relying  upon  mi- 
nute circumstances  with  respect  to  which  there  may  be 
some  source  of  error,"  "^  the  mind  is  thus  naturally  and 
inevitably  conducted,  and  in  regarding  the  application 
of  the  sanctions  of  penal  law  as  a  mere  corollary. 

Nor  can  any  practice  be  more  absurd  and  unjust,  than 
that  perpetuated  in  some  modern  codes,  which,  while 
they  admit  of  proof  by  circumstantial  evidence,  incon- 
sistently deny  to  it  its  logical  and  ordinary  consequences. 
Thus  the  penal  code  of  Austria^  prohibits  the  application 
of  capital  punishment  to  the  crime  of  murder,  "  oil  I'in- 
culpe  n'est  convaincu  que  par  le  concours  des  circon- 
stances ;"  but  nevertheless  the  party  may  be  sentenced 
to  an  imprisonment  of  twenty  years  ;  and  the  same  inde- 
fensible practice  prevails  in  many  other  states,  though 
with  a  considerable  diversity  as  to  the  maximum  penalty .'^ 
How  wise  and  just  the  emphatic  condemnatory  language 
of  the  French  Papinian  :  "  Ut  Veritas,  ita  probatio,  scindi 

»  Per  Lord  C.  B.  Pollock  in  Reg.  c  Manning  and  wife,  ut  supra. 

*>  Premiere  partie,  art.  430. 

°  See  note,  ante,  p.  26,  and  Mittermaier,  xit  supra,  c.  61. 


278  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

non  potest :  quse  non  est  plena  Veritas  est  plena  falsitas, 
non  scmiveritas ;  sic,  qua3  non  est  plena  probatio,  plane 
nulla  probatio  est."" 


Section  2. 

considerations  which    augment    the    force   of   circum- 
stantial evidence  in  particular  cases. 

Such  are  the  considerations  which  constitute  the  force 
and  effect  of  circumstantial  evidence  in  general ;  but 
there  are  some  collateral  considerations  which  augment 
the  force  of  circumstantial  evidence  in  'particular  cases, 
and  greatly  increase  the  strength  and  security  of  our 
convictions,  upon  which  it  will  be  expedient  to  dilate. 

(1)  The  principal  of  these  auxiliary  considerations 
arises  from  the  concurrence  of  many  or  of  several  sepa- 
rate and  independent  circumstances  pointing  to  the  same 
conclusion,  especially  if  they  be  deposed  to  by  uncon- 
nected witnesses.  In  proportion  to  the  number  of  co- 
gent circumstances,  each  separately  bearing  a  strict 
relation  to  the  same  inference,  the  stronger  their  united 
force  becomes,  and  the  more  secure  becomes  our  convic- 
tion of  the  moral  certainty  of  the  fact  they  are  alleged  to 
prove,  as  the  intensity  of  light  is  increased  by  the  con- 
centration of  a  number  of  rays  to  a  common  focus.  It 
is  forcibly  remarked  by  a  learned  writer,  that  "  the  more 
numerous  are  the  particular  analogies,  the  greater  is  the 
force  of  the  general  analogy  resulting  from  the  fuller 
induction  of  facts,  not  only  from  the  mere  accession  of 
particulars,  but  from  the  additional  strength  which  each 
particular  derives  by  being  surveyed  jointly  with  other 

*  Cujas,  Cod.  t.  de  Leg.,  and  see  Gabriel,  «<  supra,  67. 


CONSIDERATIONS  WHICH   AUGMENT    ITS    FORCE.         279 

])ai'tieulars,  as  one  among  the  correlative  parts  of  a 
system.""  Although  neither  the  combined  effect  of  the 
evidence,  nor  any  of  its  constituent  elements,  admits  of 
numerical  computation,  it  is  indubitable,  that  the  proving 
power  increases  with  the  number  of  the  independent  cir- 
cumstances and  witnesses,  according  to  a  geometrical 
progression.  The  effect  of  a  body  of  circumstantial  evi- 
dence is  sometimes  compared  to  that  of  a  chain,  but  the 
metaphor  is  obviously  inaccurate,  since  the  weakest  part 
of  a  chain  is,  of  necessity,  its  strongest.  Such  evidence 
is  more  aptly  compared  to  a  rope  made  up  of  many  slen- 
der filaments  twisted  together.  The  rope  has  strength 
more  than  suflticient  to  bear  the  stress  laid  upon  it, 
though  no  one  of  the  filaments  of  which  it  is  composed 
would  be  sufficient  for  that  purpose.''  These  remarks 
are  applicable  with  especial  force  to  the  written  enumera- 
tion of  a  number  of  minute  facts  "  multiplying  beyond 
calculation  the  means  of  detecting  imposture ;  serving 
the  purpose  of  an  accuser  by  hints  and  allusions  only, 
such  as  would  be  found  in  genuine  correspondence,  not 
by  those  clear  and  positive  manifestations  of  guilt  by 
which  an  eager  partisan  betrays  his  forgeries." " 

The  increase  of  force  produced  by  the  concurrence  of 
independent  circum'stances  is  analogous  to  that  which  is 
the  result  of  the  concurrence  of  several  independent  wit- 
nesses in  relating  the  same  fact ;  and  if  these  elements 
admitted  of  numerical  evaluation,  their  combined  effect 
would  be  capable  of  being  represented  by  a  fraction, 
having  for  its  numerator  the  product  of  the  chances  fa- 
vorable to  the  testimony  of  each  witness,  and  for  its  de- 

*  Hampden's  Essay,  ut  stqu-a,  63. 

^  Reid's  Essay  on  the  Intell.  Pow.  c.  iii. 

"  2  Mack.  Hist,  iii  supra,  334. 


280  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

nominator,  the  sum  of  all  the  chances,  favorable  and 
unfavorable,  the  unfavorable  chances  being  the  product 
of  the  several  deficiencies  of  the  witnesses.  But  if  in 
such  case  the  witnesses  be  dependent  on  each  other,  so 
that  the  testimony  of  the  second  depends  for  its  truth 
upon  the  first,  that  of  the  third  upon  the  second,  and  so 
on,  then  the  effect  of  the  evidence  diminishes  with  every 
increase  in  the  number  of  the  witnesses  or  the  facts, 
just  as  an  increase  in  the  denominator  of  a  fraction  re- 
duces it  to  one  of  inferior  value.'' 

A  learned  writer  has  illustrated  the  subject  by  a  case 
which  at  first  sight  seems  an  extreme  one,  and  it  has  oc- 
casionally been  pressed  in  argument  with  much  force.'' 
"  Let  it  be  supposed,"  says  he,  "  that  A.  is  robbed,  and 
that  the  contents  of  his  purse  were  one  penny,  two  six- 
pences, three  shillings,  four  half-crowns,  five  crowns,  six 
half-sovereigns,  and  seven  sovereigns,  and  that  a  person 
apprehended  in  the  same  fair  or  market  where  the  rob- 
bery takes  place  is  found  in  possession  of  the  same  re- 
markable combination  of  coin,  and  of  no  other,  but  that 
no.  part  of  the  coin  can  be  identified ;  and  that  no  cir- 
cumstances operate  against  the  prisoner  except  his  pos- 
session of  the  same  combination  of  coin  :  here,  notwith- 
standing the  very  extraordinary  coincidence  as  to  the 
number  of  each  individual  kind  of  coin,  although  the 
circumstances  raise  a  high  probability  of  identity,  yet  it 
still  is  one  of  a  definite  and  inconclusive  nature." "  The 
probability  that  the  coins  lost  and  those  discovered  are 
the  same  is  so  great,  that  perhaps  the  first  impulse  of 
every  person  unaccustomed  to  this  kind  of  reasoning  is 

a  2  Kirwan's  Logic,  c.  vii.     Hartley's  Obs.  c.  iii,  s.  2,  prop.  lxxx. 
b  Trial  of  the  Rev.  Ephraim  Avery,  charged  with  the  murder  of  Sarah  Maria 
Cornell,  before  the  Supreme  Court  of  Rhode  Island,  May,  1833.     (Boston.) 
<:  2  Starkie's  L.  of  Ev.  500. 


CONSIDERATIONS   WHICH    AUGMENT  ITS    FORCE.         281 

unhesitatingly  to  conclude  that  they  certainly  are  so ; 
yet,  nevertheless,  the  case  is  one  of  probability  only,  the 
degree  of  which  is  capable  of  exact  calculation ;  but  if 
that  degree  of  probability,  high  as  it  is,  were  sufficient 
to  warrant  conviction  in  the  particular  case,  it  would  be 
impossible  to  draw  the  distinction  between  the  degree 
of  probability  which  would  and  that  which  would  not 
justify  the  infliction  of  penal  retribution  in  other  cases 
of  inferior  probability.  In  the  case  of  a  small  number 
of  coins,  two  or  three,  for  instance,  the  probability  of 
their  identity  would  be  very  weak ;  and  yet  the  two 
cases,  though  different  in  degree,  are  in  principle  the 
same  ;  and  the  chance  of  identity  is  in  both  cases 
equally  capable  of  precise  determination.  The  learned 
writer  adds,  that  "  although  the  fact  taken  nakedly  and 
alone,  without  any  collateral  evidence,  would  in  princi- 
ple be  inconclusive,  yet,  if  coupled  with  circumstances 
of  a  conclusive  tendency,  such  as  flight,  concealment  of 
the  money,  false  and  fabricated  statements  as  to  the 
possession,  it  might  afford  strong  and  pregnant  evidence 
of  guilt  for  the  consideration  of  the  jury,"  In  like 
manner  it  would  be  difficult  to  resist  the  inference  of 
the  identity  of  the  coins,  if  in  the  case  supposed  they 
were  scarce  or  foreign  ones. 

From  the  number  of  qualifying  considerations  con- 
nected with  facts  w^hich  are  the  subjects  of  testimonial 
evidence,  and  the  impracticability  of  forming  a  numerical 
estimate  of  such  facts,  or  of  the  veracity  of  witnesses, 
the  cases  to  which  this  kind  of  reasoning  is  applicable, 
if  there  be  any  such,  must  be  very  rare.  Every  com- 
bination of  moral  incidents  and  contingent  probabilities 
must  give  a  product  of  the  same  nature,  and  affected 
by  the  same  sources  of  error  and  uncertainty,  as  affect 


282  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

its  separate  elements ;  and  in  all  judgments  grounded 
upon  circumstantial  evidence,  this  fundamental  difference 
between  moral  and  mathematical  certainty  must  be 
borne  in  mind.  "  It  were  absurd,"  declares  an  eminent 
philosopher,  "  to  say  that  the  sentiment  of  belief  pro- 
duced by  any  probability  is  proportioned  to  the  fraction 
which  expresses  that  probability ;  but  it  is  so  related 
to  it,  or  ought  to  be  so,  as  to  increase  when  it  increases, 
and  to  diminish  when  it  diminishes."  ^  It  is  manifest, 
however,  that  the  consequence  of  the  concurrence  of  a 
plurality  of  witnesses,  and  the  conjunction  of  separate 
circumstances,  is  to  add  immensely  to  the  force  of  each; 
and  if  the  credit  of  the  witnesses  be  unimpeachable,  and 
the  hypotheses  of  confederacy  and  error  be  excluded, 
then  no  other  conclusion  can  be  rationally  adopted,  than 
that  the  facts  to  which  they  depose  are  true.  The  case 
suggested  is  that  of  circumstantial  evidence  in  its  most 
cogent  form ;  and  in  such  case,  the  conclusion  to  which 
its  various  elements  converge  must  be  regarded  as  mor- 
ally irresistible. 

(2)  Independently  of  the  direct  effect  of  that  prob- 
ability which  results  from  a  concurrence  of  independent 
witnesses  or  circumstances,  the  security  of  our  judgments 
is  further  increased  from  the  considerations,  that  in  pro- 
portion to  the  number  of  such  witnesses  or  circumstances, 
confederacy  is  rendered  more  difficult,  and  that  increased 
opportunities  and  facilities  are  afforded  of  contradicting 
some  or  all  of  the  alleged  facts  if  they  be  not  true.  To 
preserve  consistency  in  a  work  even  professedly  of  fiction, 
where  all  the  writer's  art  and  attention  are  perpetually 
exerted  to  avoid  the  smallest  appearance  of  discrepancy, 
is  an  undertaking  of  no  common  difficulty;  and  it  is  ob- 

»  i  Playfair's  AVorks,  437. 


CONSIDERATIONS    WHICH    AUGMENT   ITS   FORCE.  283 

vious  that  the  difficulty  must  be  incomparably  greater  of 
preserving  coherency  and  order  in  a  fabricated  case  which 
must  be  supported  by  the  confederacy  of  several  persons, 
where,  since  by  the  hypothesis  the  congruity  results  from 
artifice,  the  slightest  variation  in  any  of  the  minute  cir- 
cumstances of  the  transaction  or  of  its  concomitants  may 
lead  to  detection  and  exposure.  On  the  other  hand, 
though  if  the  main  features  of  the  case  do  not  satisfac- 
torily establish  guilt,  it  is  not  safe  to  rely  upon  very 
minute  circumstances,*  yet,  if  the  statements  of  the 
W'itnesses  are  based  upon  realities,  the  more  rigorously 
they  are  sifted  the  more  satisfactory  will  be  the  general 
result,  from  the  development  of  minute,  indirect  and 
unexpected  coincidences  in  the  attendant  minor  particu- 
lars of  the  main  event.  It  was  happily  remarked  by 
Dr.  Paley,  that  "  the  undesignediiess  of  the  agreements 
(which  undesignedness  is  gathered  from  their  latency, 
their  minuteness,  their  obliquity,  the  suitableness  of  the 
circumstances  in  which  they  consist  to  the  places  in 
which  those  circumstances  occur,  and  the  circuitous 
references  by  which  they  are  traced  out)  demonstrates 
that  they  have  not  been  produced  by  meditation  or  by 
any  fraudulent  contrivance.  But  coincidences  from 
which  these  causes  are  excluded,  and  which  are  too 
numerous  and  close  to  be  accounted  for  by  accidental 
concurrences  of  fiction,  must  necessarily  have  truth  for 
their  foundation."^  The  same  learned  writer  also  justly 
remarks,  that  "  no  advertency  is  sufficient  to  guard 
against  slips  and  contradictions  when  circumstances  are 
multiplied."*^     Hence  it  is  observed  in  courts  of  justice, 

»  Per  Mr.  Baron  Rolfe,  in  Reg.  v.  Rush,  Norfolk  Sp.  Ass.  1849. 
^  Paley's  Evid.  p.  ii,  c.  vii;  Whately's  Rhet.  p.  i,  c.  ii,  s.  4;  Greenleaf's  Ex.,  ii( 
Hupra,  39. 

'  Horse  Paulinae,  c.  i. 


284  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

that  witnesses  who  come  to  tell  a  concerted  story  are 
always  reluctant  to  enter  into  particulars,  and  perpetu- 
ally resort  to  shifts  and  evasions  to  gain  time  for  delib- 
eration and  arrangement,  before  they  reply  directly  to 
a  course  of  examination  likely  to  bring  discredit  upon 
their  testimony. 

It  must,  nevertheless,  be  admitted  that  history  and 
experience  supply  abundant  evidence  that  it  would  be 
most  erroneous  in  the  abstract  to  decide  a  matter  of  fact 
by  numbers,  and  that  there  have  been  extraordinary 
cases  of  false  charges,  most  artfully  and  plausibly  sup- 
ported by  connected  trains  of  feigned  circumstances. 

But  considering  the  circumstances  of  the  class  of  per- 
sons most  frequently  subjected  to  accusation  for  alleged 
crirtie,  deprived  of  personal  freedom,  often  friendless, 
and  still  more  frequently  destitute  of  pecuniary  resources 
and  professional  aid,  their  imperfect  means  of  knowing 
all  the  facts  proposed  to  be  proved,  or  the  manner  in 
which  they  are  attempted  to  be  connected,  the  alleged 
facility  of  disproof  is  often  more  imaginary  than  real. 
Lord  Eldon  thus  forcibly  expressed  himself  on  this 
question  :  "  I  have  frequently  thought  that  more  effect 
has  been  given,  than  ought  to  have  been  given,  in  what 
is  called  the  summing-up  of  a  judge  on  a  trial,  to  the 
fact,  that  there  has  not  been  the  contradiction  on  the 
part  of  the  defence  which  it  is  supposed  the  witnesses 

for  the  accusation  might  have  received It  may 

often  happen  that,  in  the  course  of  a  trial,  circumstances 
are  proved  which  have  no  bearing  on  the  real  question 
at  issue ;  and  it  may  also  happen  that  facts  are  alleged 
and  sworn  to  by  witnesses,  which  it  is  impossible  for 
the  accused  party  to  contradict ;  circumstances  may  be 
stated  by  witnesses  which  are  untrue ;  yet  they  may 


CONSIDERATIONS    WHICH    AUGMENT   ITS   FORCE.  285 

not  be  contradicted,  because  the  party  injured  by  them, 
not  expecting  that  that  which  never  had  any  existence 
would  be  attempted  to  be  proved,  cannot  be  prepared 
with  opposing  witnesses.  So  also,  in  cases  in  which  an 
individual  witness  speaks  to  occurrences  at  which  no 
other  person  was  present  but  himself,  there  it  may  be 
absolutely  impossible  to  contradict  him."'"" 

Many  of  the  disadvantages  under  which  prisoners  on 
trial  are  necessarily  placed  have  been  removed  or  dimin- 
ished by  the  provisions  of  the  stats.  6  &  7  Will.  IV, 
c.  114,  ss.  3  and  4,  and  22  &  23  Vict.  c.  33,  s.  3,  which 
give  to  persons  held  to  bail  or  committed  to  prison 
a  right  to  require  copies  of  the  examination  of  the  wit- 
nesses upon  whose  evidence  they  have  been  held  to  bail 
or  committed,  on  payment  of  a  moderate  charge,  and  at 
the  time  of  trial  to  inspect  the  depositions  returned  into 
court.''  The  argument  founded  on  the  means  afforded 
of  disproof  may  consequently  now  be  urged  with  more 
justice  and  effect  than  formerly,  though  still  a  party 
charged  with  crime  has  not  of  right  any  means  of  know- 
ing any  facts  which  may  have  been  discovered  in  the 
interval  before  trial,"  or  where  an  indictment  is  found 
without  previous  commitment.  There  are,  moreover, 
many  cases  which  do  not  afford  the  alleged  focility  of 
disproof  in  any  degree  ;  where,  even  admitting  the  truth 
of  the  testimony,  the  supposed  presumption  of  guilt  is 
nothing  more  than  a  mistaken  conclusion  from  facts  which 
afford  no  warrant  for  the  inference  of  guilt ;  in  such  cir- 

»  3  Hansard's  Pari.  Deb.,  2d  series,  1445. 

*>  None  of  these  enactments  appear  to  apply  to  the  case  of  commitment  by  the 
coroner  upon  a  verdict  of  murder.  Of  course,  when  the  depositions  are  returned 
into  the  court  before  which  the  trial  is  to  be  had,  the  court  has  power  by  its  general 
jurisdiction  to  order  copies  to  be  given. 

'-■  Rex  V.  Greenacre,  8  C.  &  P.  32  ;  Reg.  v.  Walford,  ih.  767;  Reg.  v.  Uonnur,  I 
Cos,  C.  C.  233. 


286  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

cumstances,  to  attempt  disproof  is  to  attempt  to  grapple 
with  a  shadow,  to  require  it,  to  exact  an  impossibility." 
(3)  The  preceding  considerations  imply  the  necessity 
of  consistency  and  general  harmony  in  the  testimony  of 
the  different  witnesses.  All  human  events  must  neces- 
sarily form  a  coherent  whole  ;  and  actual  occurrences  can 
never  be  mutually  inconsistent.  If  one  of  two  witnesses 
depose  that  he  saw  an  individual  at  London,  and  the  other 
that  he  saw  him  at  York  at  or  near  the  same  precise  mo- 
ment, the  accounts  are  absolutely  irreconcilable,  and  one 
or  other  of  them  must  by  design  or  by  inadvertence  be 
untrue.  A  diversity  ought  always  to  excite  caution  and 
a  scrupulous  regard  to  the  capacity,  situation  and  dispo- 
sition of  the  witnesses,  and  especially  to  the  possibility 
of  confusion  from  some  mental  emotion.  "  We  are  fre- 
quently mistaken,"  said  Lord  Chief  Baron  Pollock,  "  even 
as.  to  what  we  may  suppose  we  see  ;  and  still  oftener  are 
we  mistaken  as  to  that  which  we  suppose  we  hear."  ■' 
Lord  Clarendon  relates,  that  in  the  alarm  created  by  the 
Fire  of  London,  so  terrified  were  men  with  their  own 
apprehensions,  that  the  inhabitants  of  a  whole  street 
ran  in  a  great  tumult  one  way,  upon  the  rumor  that  the 
French  were  marching  at  the  other  end  of  it.*"  The 
same  noble  historian  has  also  given  another  anecdote  re- 
lating to  that  great  calamity,  too  instructive  as  applicable 
to  this  subject  to  be  omitted.  A  servant  of  the  Portu- 
guese ambassador  was  seized  by  the  populace  and  pulled 
about,  and  very  ill-used,  upon  the  accusation  of  a  sub- 
stantial citizen,  who  was  ready  to  take  his  oath  that  he 
saw  him  put  his  hand  in  his  pocket,  and  throw  a  fireball 


»  Rex  V.  Looker,  Rex  v.  Downing,  and  Rex  v.  Thornton,  supra. 

•>  In  Reg.  V.  Manning  and  wife,  ut  supra. 

«  3  Life  and  Continuation,  91,  Oxford  ed.  1827. 


CONSIDERATIONS   WHICH    AUGMENT   ITS   FORCE.         287 

into  a  house,  which  immediately  burst  into  flames.  The 
foreigner,  who  could  not  speak  English,  heard  these 
charges  interpreted  to  him  with  amazement.  Being 
asked  what  it  was  that  he  pulled  out  of  his  pocket,  and 
what  it  was  he  threw  into  the  house,  he  answered,  that 
he  did  not  think  he  had  put  his  hand  into  his  pocket, 
but  that  he  remembered  very  well  that  as  he  walked  in 
the  street  he  saw  a  piece  of  bread  upon  the  ground, 
which  he  took  up  and  laid  upon  a  shelf  in  the  next 
house,  according  to  the  custom  of  his  country ;  which, 
observes  a  learned  writer,^  is  so  strong,  that  the  King 
of  Portugal  himself  would  have  acted  with  the  same 
scrupulous  regard  to  general  economy.  Upon  searching 
the  house,  which  was  in  view,  the  bread  was  found  just 
within  the  door,  upon  a  board  as  described ;  and  the 
house  on  fire  was  two  doors  beyond  it,  the  citizen  having 
erroneously  concluded  it  to  be  the  same  ;  "  which,"  says 
Lord  Clarendon,  "  was  very  natural  in  the  fright  that 
all  men  were  in."  ^ 

But  variations  in  the  relations  by  different  persons  of 
the  same  transaction  or  event,  in  respect  of  unimportant 
circumstances,  are  not  necessarily  to  be  regarded  as  in- 
dicative of  fraud  or  falsehood,  provided  there  be  sub- 
stantial agreement  in  other  respects.  True  strength  of 
mind  consists  in  not  allowing  the  judgment,  when  founded 
upon  convincing  evidence,  to  be  disturbed  because  there 
are  immaterial  discrepancies  which  cannot  be  reconciled. 
When  the  vast  inherent  differences  in  individuals  with 
respect  to  natural  faculties  and  acquired  habits  of  accu- 
rate observation,  faithful  recollection,  and  precise  narra- 
tion, and  the  important  influence   of  intellectual  and 

*  3  Wooddeson's  Lect.  on  the  Laws  of  England,  Lect.  53. 
*>  3  Clarendon's  Life  and  Continuation,  86. 


288  WILLS    ON    CIRCUMSTANTIAL   EVIDENCE. 

moral  culture,  are  duly  considered,  it  will  not  be  thought 
surprising  that  entire  agreement  is  seldom  found  amongst 
M  number  of  witnesses  as  to  all  the  collateral  incidents 
of  the  same  principal  event.  Lord  Ellenborough  said 
that  the  general  accordance  of  all  material  circumstances 
rather  confirmed  by  minute  diversity  than  weakened 
the  general  credit  of  the  whole,  and  gave  it  the  advan- 
tage which  belongs  to  an  artless  and  unartificial  tale ; 
and  that  minute  variances  exclude  the  idea  of  any  uni- 
form contrivance  and  design  in  the  variation,  for  where 
it  is  an  artful  and  prepared  story,  the  parties  agree  in 
the  minutest  facts  as  well  as  in  the  most  important.'' 
''  I  know  not,"  says  Paley,  "  a  more  rash  or  unphilosoph- 
ical  conduct  of  the  understanding  than  to  reject  the  sub- 
stance of  a  story  by  reason  of  some  diversity  in  the  cir- 
cumstances with  which  it  is  related.  The  usual  character 
of  human  testimony  is  substantial  truth  under  circum- 
stantial variety.  That  is  what  the  daily  experience  of 
courts  of  justice  teaches.  When  accounts  of  a  transaction 
come  from  the  mouths  of  different  witnesses,  it  is  seldom 
that  it  is  not  possible  to  pick  out  apparent  or  real  incon- 
sistencies between  them.  These  circumstances  are  studi- 
ously displayed  by  an  adverse  pleader,  but  oftentimes 
with  little  impression  upon  the  minds  of  the  judges.  On 
the  contrary,  a  close  and  minute  agreement  induces  the 
suspicion  of  confederacy  and  fraud."  ^ 

Instances  of  discrepancy  as  to  the  minor  attendant 
circumstances  of  historical  events  are  numberless.  Lord 
Clarendon  relates  that  the  Marquis  of  Argyle  was  con- 
demned to  be  hanged,  and  that  the  sentence  was  per- 
formed the  same  day.     Burnet,  Woodrow,  and  Echard, 

»  Rex  I'.  Lord  Cochrane  and  others,  Gurney's  Rep.  456. 
•>  Paley's  Ev.  p.  iii,  c.  i. 


CONSIDERATIONS  WHICH    AUGMENT    ITS    FORCE.         289 

writers  of  good  authority,  who  lived  near  the  time,  state 
that  he  was  beheaded,  though  condemned  to  be  hanged, 
and  that  the  sentence  was  pronounced  on  Saturday  and 
carried  into  effect  on  the  Monday  following."  Charles  II, 
after  his  flight  from  Worcester,  has  been  variously  stated 
to  have  embarked  at  Briththelmstone  and  at  New  Shore- 
ham.''  Clarendon  states  th-at  the  royal  standard  was 
erected  about  six  o'clock  of  the  evening  of  the  20th  of 
August,  "  a  very  stormy  and  tempestuous  day ;"  whereas 
other  contemporary  historians  variously  state  that  it  was 
erected  on  the  22d  and  the  24th  of  that  month.*"  By 
some  historians  the  death  of  the  Parliamentary  leader 
Pym  is  stated  to  have  taken  place  in  the  month  of  May, 
1643  J  ^  while  by  others  it  is  said  to  have  occurred  in  the 
following  year.  To  come  nearer  to  our  own  times,  the 
author  of  a  celebrated  biographical  memoir  relates,  that 
after  the  Rebellion  of  1745  three  lords  were  executed 
at  Tower-hill ;  whereas  it  is  well  known  that  two  only 
underwent  that  doom,  the  third.  Lord  Nithsdale,  having, 
by  the  heroic  self-devotion  of  his  wife,  effected  his  escape 
the  night  before  his  intended  execution.''  It  is  remark- 
able that  contemporary  and  early  writers  have  stated 
the  lady  in  question  to  have  been  his  mother.  Such 
discrepancies  never  excite  a  serious  doubt  as  to  the 
truth  of  the  principal  facts  with  which  they  are  con- 
nected ;  unless  they  can  be  traced  to  the  operation  of 
prejudice  or  some  other  sinister  motive. *^ 

*  Comp.  2  Life  and  Continuation,  266,  and  Paley's  Ev.  p.  iii,  c.  1. 

•>  6  Hi5t.  of  Reb.  541 ;  11  Linguid's  Hist,  of  Eng.  c.  1. 

*:  3  Hist,  of  Reb.  190;  1  Rushworth's  Coll.  i,  p.  iii,  783;  Mem.  of  Ludlow,  15. 

<»  AVhitelock's  Memorials,  66;  Baker's  Chron.  570  b;  4  Hist,  of  Reb.  436 j  7 
Hume's  Hist.  540,  ed.  1818;  1  Godwin's  Hist,  of  the  Comm.  17. 

«  Coxe's  Mem.  of  Walpole,  73. 

f  See  in  4  Clarendon's  Hist.  436,  a  remarkable  instance  of  historical  dishonesty. 
He  states  that  Pym  died  of  a  loathsome  disease,  morhita  pediculosus,  evidently  with 
19 


290  WILLS    ON   CIRCUMSTANTIAL    EVIDENCE. 

Still  less  are  mere  omissions  to  be  considered  as  neces- 
sarily casting  discredit  upon  testimony  which  stands  in 
other  respects  imimpeached  and  unsuspected.  Omissions 
are  generally  capable  of  explanation  by  the  considera- 
tion that  the  mind  may  be  so  deeply  impressed  with, 
and  the  attention  so  riveted  to,  a  particular  fact,  as  to 
withdraw  attention  from  concomitant  circumstances,  or 
prevent  it  from  taking  note  of  what  is  passing.  It  has 
been  justly  remarked,  that  "  upon  general  principles, 
affirmative  is  better  than  negative  evidence.  A  person 
deposing  to  a  fact,  which  he  states  he  saw,  must  either 
speak  truly,  or  must  have  invented  his  story,  or  it  must 
have  been  sheer  delusion.  Not  so  with  negative  evi- 
dence ;  a  fact  may  have  taken  place  in  the  very  sight  of 
a  person  who  may  not  have  observed  it ;  and  if  he  did 
observe  it,  may  have  forgotten  it."''  The  meteor  called 
the  Northern  Lights  is  not  recorded  to  have  been  seen 
in  the  British  Islands  before  the  commencement  of  the 
last  century.^  Negative  evidence  is  therefore  regarded 
as  of  little  or  no  weight  when  opposed  to  the  positive 
affirmative  evidence  of  persons  of  unimpeachable  credit. 
Sometimes,  however,  the  non-relation  of  particular  facts 
amounts  to  the  svppressio  veri,  which  in  point  of  moral 
guilt  may  be  equal  to  positive  mendacity,  and  destruc- 
tive of  all  claim  to  testimonial  credit.*^ 

the  design  of  propagating  the  notion  that  it  was  "a  mark  of  divine  vengeance" 
(7  Hume's  Hist.  540);  vphereas  he  must  have  known  that  his  corpse  was  exposed 
to  public  view  for  several  days  before  it  was  interred,  in  confutation  of  this  calum- 
nious statement.     (Ludlow's  Mem.  31.) 

*  Sir  Herbert  Jenner,  in  Chambers  v.  the  Queen's  Proctor,  2  Curt.  415. 

i"  Whately's  Introd.  Less,  on  Christ.  Ev.  45. 

'^  Grafton,  who  was  printer  to  Queen  Elizabeth,  in  his  Chronicles,  published  in 
1502,  in  writing  the  history  of  King  John,  has  made  no  mention  of  Magna  Charta  ; 
perhaps  he  considered  that  his  silence  might  be  deemed  complimentary  to  that 
arbitrary  princess. 


illustrations  of  its  force.  291 

Section  3. 

cases  in  illustration  of  the  force  of  circumstantial 

evidence. 

Many  remarkable  cases  of  this  nature  have  been  given 
in  the  preceding  pages,  in  application  to  the  exemplifi- 
cation of  some  specific  doctrine  or  object ;  to  these  will 
now  be  added,  as  an  appropriate  commentary  upon  this 
discussion  of  the  scientific  principles  which  govern  the 
reception  and  estimate  of  circumstantial  evidence,  some 
of  the  most  curious  and  instructive  examples  of  the  force 
of  a  cumulation  of  moral  and  mechanical  facts  which  are 
to  be  found  in  the  annals  of  criminal  jurisprudence. 

(1)  In  the  autumn  of  1786,  a  young  woman,  who  lived 
with  her  parents  in  a  remote  district  in  Kirkcudbright, 
was  one  day  left  alone  in  the  cottage,  her  parents  having 
gone  out  to  the  harvest-field.  On  their  return  home  a 
little  after  midday  they  found  their  daughter  murdered, 
with  her  throat  cut  in  a  most  shocking  manner.  The 
circumstances  in  which  she  was  found,  the  character  of 
the  deceased,  and  the  appearance  of  the  wound,  all  con- 
curred in  excluding  any  presumption  of  suicide ;  while 
the  surgeons  who  examined  the  wound  were  satisfied 
that  it  had  been  inflicted  by  a  sharp  instrument,  and  by 
a  person  who  must  have  held  the  instrument  in  his  left 
hand.  Upon  opening  the  body  the  deceased  appeared 
to  have  been  some  months  gone  with  child ;  and  on 
examining  the  ground  about  the  cottage,  there  were 
discovered  the  footsteps  of  a  person  who  had  seemingly 
been  running  hastily  from  the  cottage,  by  an  indirect 
road  through  a  quagmire  or  bog  in  which  there  were 
stepping-stones.     It  appeared,  however,  that  the  person 


292  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

in  his  haste  and  confusion  had  slipped  his  foot  and 
stepped  into  the  mire,  by  which  he  must  have  been 
wet  nearly  to  the  middle  of  the  leg.  The  prints  of  the 
footsteps  were  accurately  measured,  and  an  exact  im- 
pression taken  of  them ;  and  it  appeared  that  they  were 
those  of  a  person  who  must  have  worn  shoes  the  soles  of 
which  had  been  newly  mended,  and  which,  as  is  usual 
in  that  part  of  the  country,  had  iron  knobs  or  nails  in 
them.  There  were  discovered  also,  along  the  track  of 
the  footsteps,  and  at  certain  intervals,  drops  of  blood ; 
and  on  a  stile  or  small  gateway  near  the  cottage,  and  in 
the  line  of  the  footsteps,  some  marks  resembling  those  of 
a  hand  which  had  been  bloody.  Not  the  slightest  sus- 
picion at  this  time  attached  to  any  particular  person  as 
the  murderer,  nor  was  it  even  suspected  who  might  be 
the  father  of  the  child  of  which  the  girl  was  pregnant. 
At  the  funeral  a  number  of  persons  of  both  sexes  at- 
tended, and  the  ste wart-depute  thought  it  the  fittest 
opportunity  of  endeavoring  if  possible  to  discover  the 
murderer ;  conceiving  rightly  that  to  avoid  suspicion, 
wdioever  he  was,  he  would  not  on  that  occasion  be  absent. 
With  this  view,  he  called  together  after  the  interment 
the  whole  of  the  men  who  were  present,  being  about 
sixty  in  number.  He  caused  the  shoes  of  each  of  them 
to  be  taken  off  and  measured  ;  and  one  of  the  shoes  was 
found  to  resemble,  pretty  nearly,  the  impression  of  the 
footsteps  near  to  the  cottage.  The  wearer  of  the  shoe 
was  the  schoolmaster  of  the  parish,  which  led  to  a  sus- 
picion that  he  must  have  been  the  father  of  the  child, 
and  had  been  guilty  of  the  murder  to  save  his  character. 
On  a  closer  examination,  however,  of  the  shoe,  it  was 
discovered  that  it  was  pointed  at  the  toe,  whereas  the 
impression  of  the   footstep  was  round  at  that  place. 


ILLUSTRATIONS   OF   ITS   FORCE.  293 

The  measurement  of  the  rest  went  on,  and  after  going 
through  nearly  the  whole  number,  one  at  length  was 
discovered  which  corresponded  exactly  with  the  impres- 
sion in  dimensions,  shape  of  the  foot,  form  of  the  sole, 
and  the  number  and  position  of  the  nails.  William 
Richardson,  the  young  man  to  whom  the  shoe  belonged, 
on  being  asked  where  he  was  the  day  the  deceased  was 
murdered,  replied,  seemingly  without  embarrassment, 
that  he  had  been  all  that  day  employed  at  his  master's 
work,  a  statement  which  his  master  and  fellow-serA^ants, 
who  were  present,  confirmed.  This  going  so  far  to  re- 
move suspicion,  a  warrant  of  commitment  was  not  then 
granted ;  but  some  circumstances  occurring  a  few  days 
afterwards,  having  a  tendency  to  excite  it  anew,  the 
young  man  was  apprehended  and  lodged  in  jail.  Upon 
his  examination  he  acknowledged  that  he  was  left- 
handed;  and  some  scratches  being  observed  on  his  cheek, 
he  said  he  had  got  them  when  pulling  nuts  in  a  wood  a 
few  days  before.  He  still  adhered  to  what  he  had  said 
of  his  having  been  on  the  day  of  the  murder  employed 
constantly  at  his  master's  work,  at  some  distance  from 
the  place  where  the  deceased  resided  ;  but  in  the  course 
of  the  inquiry  it  turned  out  that  he  had  been  absent 
from  his  work  about  half  an  hour  (the  time  being  dis- 
tinctly ascertained)  in  the  course  of  the  forenoon  of  that 
day ;  that  he  called  at  a  smith's  shop,  under  the  pre- 
tence of  wanting  something,  which  it  did  not  appear  he 
had  any  occasion  for ;  and  that  this  smith's  shop  was 
in  the  way  to  the  cottage  of  the  deceased.  A  young 
girl,  who  was  some  hundred  yards  from  the  cottage, 
said  that  about  the  time  the  murder  was  committed 
(and  which  corresponded  to  the  time  that  Richardson 
was  absent  from  his  fellow-servants)  she  saw  a  person 


294  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

exactly  with  his  dress  and  appearance  running  hastily 
toward  the  cottage,  but  did  not  see  him  return,  though 
he  might  have  gone  round  by  a  small  eminence  which 
would  intercept  him  from  her  view,  and  which  was  the 
very  track  where  the  footsteps  had  been  traced.  His 
fellow-servants  now  recollected  that  in  the  forenoon  of 
that  day  they  were  employed  with  Richardson  in  driving 
their  master's  carts  ;  and  that  when  passing  by  a  wo5d, 
which  they  named,  he  said  that  he  must  run  to  the 
smith's  shop  and  would  be  back  in  a  short  time.  He 
then  left  his  cart  under  their  charge  ;  and  having  waited 
for  him  about  half  an  hour,  which  one  of  the  servants 
ascertained  by  having  at  the  time  looked  at  his  watch, 
they  remarked  on  his  return  that  he  had  been  longer 
absent  than  he  said  he  would  be,  to  which  he  replied 
that  he  stopped  in  the  wood  to  gather  some  nuts. 
They  observed  at  this  time  one  of  his  stockings  wet 
and  soiled  as  if  he  had  stepped  into  a  puddle ;  on 
which  they  asked  where  he  had  been.  He  said  he  had 
stepped  into  a  marsh,  the  name  of  which  he  mentioned ; 
on  which  his  fellow-servants  remarked,  "  that  he  must 
have  been  either  mad  or  drunk  if  he  had  stepped  into 
that  marsh,  as  there  was  a  footpath  which  went  along 
the  side  of  it."  It  then  appeared,  by  comparing  the 
time  he  was  absent  with  the  distance  of  the  cottage 
from  the  place  where  he  had  left  his  fellow-servants, 
that  he  might  have  gone  there,  committed  the  murder, 
and  returned  to  them.  A  search  was  then  made  for  the 
stockings  he  had  worn  that  day,  which  were  found  con- 
cealed in  the  thatch  of  the  apartment  where  he  slept, 
and  appeared  to  be  much  soiled,  and  to  have  some 
drops  of  blood  on  them.  The  last  he  accounted  for  by 
saying,  first,  that  his  nose  had  been  bleeding  some  days 


ILLUSTRATIONS    OF    ITS    FORCE.  295 

before ;  but  it  being  observed  that  he  had  worn  other 
stockings  on  that  day,  he  said  he  had  assisted  in  bleed- 
ing a  horse  ;  but  it  was  proved  that  he  had  not  assisted, 
and  had  stood  at  such  a  distance  that  the  blood  could 
not  have  reached  him.  On  examining  the  mud  or  sand 
upon  the  stockings,  it  corresponded  precisely  with  that  of 
the  mire  or  puddle  adjoining  to  the  cottage,  which  was 
of  a  very  particular  kind,  none  other  of  the  same  kind 
being  found  in  that  neighborhood.  The  shoemaker 
was  then  discovered  who  had  mended  his  shoes  a  short 
time  before,  and  he  spoke  distinctly  to  the  shoes  of  the 
prisoner,  w^hich  were  exhibited  to  him,  as  having  been 
those  he  had  mended.  It  then  came  out  that  Richard- 
son had  been  acquainted  with  the  deceased,  who  was 
considered  in  the  county  as  of  weak  intellect,  and  had 
on  one  occasion  been  seen  with  her  in  a  wood,  in  cir- 
cumstances that  led  to  a  suspicion  that  he  had  had  crim- 
inal intercourse  with  her ;  and  on  being  taunted  with 
having  such  connection  with  one  in  her  situation,  he 
seemed  much  ashamed  and  greatly  hurt.  It  was  proved 
further,  by  the  person  who  sat  next  to  him  when  his 
shoes  were  measuring,  that  he  trembled  much,  and 
•seemed  a  good  deal  agitated ;  and  that  in  the  interval 
between  that  time  and  his  being  apprehended  he  had 
been  advised  to  fly,  but  his  answer  was,  "Where  can  I 
fly  to  ?"  On  the  other  hand,  evidence  was  brought  to 
show  that,  about  the  time  of  the  murder,  a  boat's  crew 
from  Ireland  had  landed  on  that  part  of  the  coast,  near 
to  the  dwelling  of  the  deceased ;  and  it  was  said  that 
some  of  the  crew  might  have  committed  the  murder, 
though  their  motives  for  doing  so  it  was  difficult  to  ex- 
plain, it  not  being  alleged  that  robbery  was  their  pur- 
pose, or  that  anything  was  missing  from  the  cottages  in 


296  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

the  neigh borhoofl.  The  prisoner  was  tried  at  Dumfries, 
in  the  spring  of  1787,  and  the  jury  by  a  great  plurality 
of  voices  found  him  guilty.  Before  his  execution  he 
confessed  that  he  was  the  murderer ;  and  said  it  was 
to  hide  his  shame  that  he  committed  the  deed,  knowing 
that  the  girl  was  with  child  by  him.  He  mentioned 
also  to  the  clergyman  who  attended  him  where  the 
knife  would  be  found  with  which  he  had  perpetrated 
the  murder ;  and  it  was  found  accordingly,  in  the  place 
he  described,  under  a  stone  in  a  wall,  with  marks  of 
blood  upon  it.* 

The  casual  discovery  of  circumstances  which  indicated 
the  existence  of  a  powerful  motive  to  commit  the  deed, 
the  facts,  that  it  had  been  committed  by  a  left-handed 
man,  as  the  prisoner  was,  thus  narrowing  the  range  of 
inquiry,  and  that  there  was  an  interval  of  absence  w^hich 
afforded  the  prisoner  the  necessary  opportunity  of  com- 
mitting the  crime,  his  false  assertion  that  he  had  not 
been  absent  from  his  work  on  that  day,  contradicted  as 
it  was  by  witnesses  who  saw  him  on  the  way  to  and  in 
the  vicinity  of  the  scene  of  the  murder,  amounting  to  an 
admission  of  the  relevancy  and  weight  of  that  circum- 
stance if  uncontradicted,  the  discovery  of  his*  footsteps  " 
near  the  spot,  his  agitation  at  the  time  of  the  admeas- 
urement and  comparison  of  his  shoes  with  the  impres- 
sions, the  discovery  of  his  secreted  stockings,  spotted 
with  blood,  and  soiled  with  mire  peculiar  to  the  vicinity 
of  the  cottage,  the  scratches  on  his  face,  his  various 
contradicted  statements,  all  these  particulars  combine 
to  render  this  a  most  satisfactory  case  of  conviction,  and 

^  Rex  V.  Richardson,  Burnett's  C.  L.  ut  supni,  524.  This  case  is  also  concisely 
stated  in  the  Memoirs  of  the  Life  of  Sir  Walter  Scott  (iv,  52,  2d  ed.) ;  and  it  supplied 
one  of  the  most  striking  incidents  in  "  Guy  Mannering." 


ILLUSTRATIONS    OF    ITS    FORCE.  297 

to  exemplify  the  high  degree  of  assurance  which  circniii- 
stantial  evidence  is  capable  of  producing. 

(2)  A  man  named  Patch  had  been  received  by  Mr. 
Isaac  Blight,  a  ship-breaker,  near  Greenland  Dock,  into 
his  service  in  the  year  1803.  Mr.  Blight  having  become 
embarrassed  in  his  circumstances  in  July,  1805,  entered 
into  a  deed  of  composition  with  his  creditors ;  and  in 
consequence  of  the  failure  of  this  arrangement  he  made 
a  colorable  transfer  of  his  property  to  the  prisoner.  It 
was  afterwards  agreed  between  them,  that  Mr.  Blight 
was  to  retire  nominally  from  the  business,  which  the 
prisoner  was  to  manage,  and  the  former  was  to  have  two- 
thirds  of  the  profits,  and  the  prisoner  the  remaining  third, 
for  which  he  was  to  pay  £1250.  Of  this  amount,  £250 
was  paid  in  cash,  and  a  draft  was  given  for  the  remainder 
upon  a  person  named  Goom,  which  would  become  pay- 
able on  the  10th  of  September  ;  the  prisoner  representing 
that  he  had  received  the  purchase-money  of  an  estate  and 
lent  it  to  Goom.  On  the  IGth  of  September  the  prisoner 
represented  to  Mr.  Blight's  bankers  that  Goom  could  not 
take  up  the  bill,  and  withdrew  it,  substituting  his  own 
draft  upon  Goom,  to  fall  due  on  the  20th  of  September. 
On  the  19th  of  September  Mr.  Blight  went  to  visit  his 
wife  at  Margate,  and  the  prisoner  accompanied  him  as 
far  as  Deptford,  and  then  went  to  London,  and  repre- 
sented to  the  bankers  that  Goom  w^ould  not  be  able  to 
face  his  draft,  but  that  he  had  obtained  from  him  a  note 
which  satisfied  him,  and  therefore  they  were  not  to  pre- 
sent it.  The  prisoner  boarded  in  Mr.  Blight's  house, 
and  the  only  other  inmate  was  a  female  servant,  whom, 
about  eight  o'clock  on  the  same  evening  (the  19th).  he 
sent  out  to  procure  some  oysters  for  his  supper.  During 
her  absence  a  gun  or  pistol  ball  w^as  fired  through  the 


298  WILLS   ON    CIRCUMSTANTIAL    EVIDENCE. 

shutter  of  a  parlor  fronting  the  Thames,  where  the  fam- 
ily, when  at  home,  usually  spent  their  evenings.  It 
was  low  water,  and  the  mud  was  so  deep  that  any  per- 
son attempting  to  escape  in  that  direction  must  have 
been  suffocated ;  and  a  man  who  was  standing  near  the 
gate  of  the  wharf,  which  was  the  only  other  mode  of 
escape,  heard  the  report,  but  saw  no  person.  From  the 
manner  in  which  the  ball  had  entered  the  shutter,  it 
must  have  been  discharged  by  some  person  who  was 
close  to  the  shutter ;  and  the  river  was  so  much  below 
the  level  of  the  house,  that  the  ball,  if  it  had  been  fired 
from  thence,  must  have  reached  a  much  higher  part  than 
that  which  it  struck.  The  prisoner  declined  the  offer 
of  the  neighbors  to  remain  in  the  house  with  him  that 
night.  On  the  following  day  he  wrote  to  inform  Mr. 
Blight  of  this  transaction,  stating  his  hope  that  the  shot 
had  been  accidental,  that  he  knew  of  no  person  who  had 
any  animosity  against  him,  that  he  wished  to  know  for 
whom  it  was  intended,  and  that  he  should  be  happy  to 
hear  from  him,  but  much  more  so  to  see  him.  Mr.  Blight 
returned  home  on  the  23d  of  September,  having  previ- 
ously been  to  London  to  see  his  bankers  on  the  subject 
of  the  £1000  draft.  Upon  getting  home,  the  draft  be- 
came the  subject  of  conversation,  and  Mr.  Blight  desired 
the  prisoner  to  go  to  London  and  not  to  return  without 
the  money.  Upon  his  return  from  London,  the  prisoner 
and  Mr.  Blight  spent  the  evening  in  the  hack  parlor,  a 
different  one  from  that  in  which  the  family  usually  sat. 
About  eight  o'clock  the  prisoner  went  from  the  parlor 
into  the  kitchen,  and  asked  the  servant  for  a  candle, 
complilining  that  he  was  disordered.  The  prisoner's  way 
from  the  kitchen  was  through  an  outer  door  which  fast- 
ened by  a  spring  lock,  and  across  a  paved  court  in  front 


ILLUSTRATIONS   OF    ITS    FORCE.  299 

of  the  house,  which  was  enclosed  by  palisadoes,  and 
through  a  gate  over  a  wharf,  in  front  of  that  court,  on 
which  there  was  the  kind  of  soil  peculiar  to  premises 
for  breaking  up  ships,  and  then  through  a  counting- 
house.  All  of  these  doors,  as  well  as  the  door  of  the 
parlor,  the  prisoner  left  open,  notwithstanding  the  state 
of  alarm  excited  by  the  shot.  The  servant  heard  the 
priA^-door  slam,  and  almost  at  the  same  moment  saw 
the  flash  of  a  pistol  at  the  door  of  the  parlor  where  the 
deceased  was  sitting,  upon  which  she  ran  and  shut  the 
outer  door  and  gate.  The  prisoner  immediately  after- 
wards rapped  loudly  at  the  door  for  admittance,  with 
his  clothes  in  disoi*der.  He  evinced  great  apparent  con- 
cern for  Mr.  Blight,  who  was  mortally  wounded  and 
died  on  the  following  day.  From  the  state  of  the  tide, 
and  from  the  testimony  of  various  persons  who  were 
on  the  outside  of  the  premises,  no  person  could  have 
escaped  from  them.  In  consequence  of  this  event  Mrs. 
Blight  returned  home,  and  the  prisoner,  in  answer  to 
an  inquiry  about  the  draft  which  had  made  her  hus- 
band so  uneasy,  told  her  that  it  was  paid,  and  claimed 
the  whole  of  the  property  as  his  own.  Suspicion  soon 
fixed  upon  the  prisoner,  and  in  his  sleeping-room  was 
found  a  pair  of  stockings  rolled  up  like  clean  stockings, 
but  with  the  feet  plastered  over  with  the  sort  of  soil 
found  on  the  wharf,  and  a  ramrod  was  found  in  the 
privy.  The  prisoner  usually  wore  boots,  but  on  the 
evening  of  the  murder  he  wore  shoes  and  stockings.  It 
was  supposed  that,  to  prevent  alarm  to  the  deceased  or 
the  female  servant,  the  murderer  must  have  approached 
without  his  shoes,  and  afterwards  gone  on  the  wharf  to 
throw  away  the  pistol  into  the  river.  All  the  prisoner's 
statements  as  to  his  pecuniary  transactions  with  Goom. 


300  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

and  his  right  to  draw  upon  him,  and  the  payment  of  the 
bill,  turned  out  to  be  false.  He  attempted  to  tamper 
with  the  servant-girl  as  to  her  evidence  before  the  cor- 
oner, and  urged  her  to  keep  to  one  account ;  and  before 
that  officer  he  made  several  inconsistent  statements  as 
to  his  pecuniary  transactions  with  the  deceased,  and 
equivocated  much  as  to  whether  he  wore  boots  or  shoes 
on  the  evening  of  the  murder,  as  well  as  to  his  owner- 
ship of  the  soiled  stockings,  which,  however,  were  clearly 
proved  to  be  his,  and  for  the  soiled  state  of  which  he 
made  no  attempt  to  account.  The  prisoner  suggested 
the  existence  of  malicious  feelings  in  two  persons  with 
whom  the  deceased  had  been  on  ill  terms ;  but  they  had 
no  motive  for  doing  him  any  injury,  and  it  was  clearly 
proved  that  upon  both  occasions  of  attack  they  were  at 
a  distance. 

The  prisoner's  motive  was  to  possess  himself  of  the 
business  and  property  of  his  benefactor ;  and  to  all  ap- 
pearance his  falsehoods  and  duplicity  were  on  the  point 
of  being  discovered.  His  apparent  incaution  on  the 
evening  of  the  murder  could  be  accounted  for  after  the 
preceding  alarm  by  no  other  supposition  than  that  it  was 
the  result  of  premeditation,  and  intended  to  afford  facil- 
ities for  the  execution  of  his  dark  purposes.  The  direc- 
tion of  the  first  ball  through  the  shutter  excluded  the 
possibility  that  it  had  been  fired  from  any  other  place 
than  the  deceased's  own  premises ;  and  by  a  singular 
concurrence  of  circumstances,  it  was  clearly  proved  that 
no  person  escaped  from  the  premises  after  either  of  the 
shots,  so  that  suspicion  was  necessarily  restricted  to  the 
persons  on  the  premises.  The  occurrence  of  the-  first 
attack  during  the  temporary  absence  of  the  servant  (that 
absence  contrived  by  the  prisoner  himself),  the  disco v- 


ILLUSTRATIONS   OF   ITS   FORCE.  301 

ery  of  a  ramrod  in  the  very  place  where  the  prisoner 
had  been,  and  of  his  soiled  stockings  folded  up  so  as  to 
evade  observation,  his  interference  with  one  of  the  wit- 
nesses, his  falsehoods  respecting  his  pecuniary  trans- 
actions with  Goom  and  with  the  deceased,  and  his 
attempts  to  exonerate  himself  from  suspicion  by  impli- 
cating other  persons,  all  these  cogent  circumstances  of 
presumption  tended  to  show  not  only  that  the  prisoner 
was  the  only  person  who  had  any  motive  to  destroy  the 
deceased,  but  that  the  crime  could  have  been  committed 
by  no  other  person ;  and  while  all  the  facts  were  natu- 
rally explicable  upon  the  hypothesis  of  his  guilt,  they 
were  incapable  of  any  other  reasonable  solution.  The 
prisoner  was  convicted  and  executed.'' 

(8)  A  respectable  farmer,  who  had  been  at  Stour- 
bridge market  on  the  18th  of  December,  left  that  place 
on  foot  a  little  after  four  in  the  afternoon,  to  return 
home,  a  distance  of  between  two  and  three  miles.  About 
half  a  mile  from  his  own  house  he  was  overtaken  by  a 
man,  who  inquired  the  road  for  Kidderminster,  and 
they  walked  together  for  two  or  three  hundred  yards, 
when  the  stranger  drew  behind  and  shot  him  in  the 
back,  and  then  robbed  him  of  about  eleven  pounds  in 
money  and  a  silver  watch.  After  lingering  ten  days,  he 
died  of  the  wound  thus  received.  The  wounded  man 
noticed  that  the  pistol  was  long  and  very  bright,  and 
that  the  robber  had  on  a  dark-colored  great  coat,  which 
reached  down  to  the  calves  of  his  legs.  Several  cir- 
cumstances of  correspondence  with  the  description  given 
by  the  deceased  conspired  to  fix  suspicion  upon  the 
prisoner,  who  for  about  fourteen  months  had  worked  as 

*  Surrey  Spring  Ass.  1S06,  coram  L.  C.  B.  Macdonald.     Gurney's  Short-hand 
Report. 


302  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

a  carpenter  at  Ombersley,  seventeen  miles  from  Stour- 
bridge. It  was  discovered  that  he  had  been  absent  from 
that  place  from  the  17th  to  the  22d  of  December;  that 
on  the  23d  he  had  taken  two  boxes,  one  containing  his 
working-tools  and  the  other  his  clothes,  to  Worcester, 
and  there  delivered  them  to  a  carrier,  addressed  to  John 
Wood,  at  an  inn  in  London,  to  be  left  till  called  for,  the 
name  by  which  he  was  known  being  William  Howe ; 
and  that  on  the  25th  he  finally  left  Ombersley,  and  went 
to  London.  Upon  inquiry  at  the  inn  to  which  the  boxes 
were  directed,  it  was  found  that  a  person  answering  the 
description  of  the  prisoner  had  removed  them  in  a  meal- 
man's  cart  to  the  Bull  in  Bishopsgate  Street,  and  that  on 
the  5th  of  January  they  had  been  removed  from  thence 
in  a  cooper's  cart.  Here  all  trace  of  the  boxes  seemed 
cut  off;  but  on  the  12th  of  January  the  police  officers 
succeeded  in  tracing  them  to  a  widow  woman's  house, 
in  a  court  in  the  same  street ;  when,  upon  examining  the 
box  which  contained  the  prisoner's  clothes,  they  found  a 
screw-barrel  pistol,  a  pistol-key,  a  bullet-mould,  a  single 
bullet,  a  small  quantity  of  gunpowder  in  a  cartridge,  and 
a  fawn-skin  waistcoat ;  which  latter  circumstance  was  im- 
portant, as  the  prisoner  was  seen  in  Stourbridge  on  the 
day  of  the  murder,  dressed  in  a  waistcoat  of  that  kind. 
By  remaining  concealed  in  the  woman's  house  the  po- 
lice were  enabled  to  apprehend  the  prisoner,  who  called 
there  the  following  night.  Upon  his  apprehension,  he 
denied  that  he  had  ever  been  at  Stourbridge,  or  heard  of 
the  deceased  being  shot;  and  he  accounted  for  chang- 
ing his  name  at  Worcester,  by  stating  that  he  had  had 
a  difference  with  his  fellow  work-people,  and  afterwards 
that  he  did  it  to  prevent  his  wife,  whom  he  had  de- 
termined to  leave,  from  being  able  to  follow  him.     On 


ILLUSTRATIONS   OF    ITS    FORCE.  d03 

being  asked  where  he  was  on  the  18th  of  December,  he 
said  he   believed  at  Kidderminster,  a  town  about  six 
miles  from  Stourbridge.    Upon  the  prisoner's  subsequent 
examination  before  the  magistrates,  he  stated  that  he  was 
at  Kidderminster  on  the  17th  of  December,  and  at  Stour- 
bridge on  the  18th  (the  day  of  the  murder),  but  that  he 
was  not  out  of  the  latter  town  from  the  time  of  his  ar- 
rival there,  at  one  o'clock  in  the  afternoon,  until  half-past 
seven  the  following  morning ;  that  on  the  afternoon  he 
went  to  look  about  the  town  for  lodgings,  and  ultimately 
went  to  his  lodgings  about  six  o'clock  in  the  evening. 
The  account  which  the  prisoner  thus  gave  of  himself  was 
proved  to  be  a  tissue  of  falsehoods.     He  had  been  seen 
by  several  witnesses  between  four  and  five  in  the  after- 
noon of  the  day  in  question,  on  the  road  leading  from 
Stourbridge  toward,  and  not  far  from,  the  spot  where  the 
deceased  was  shot,  and  about  half-past  five  he  was  seen 
going  in  great  haste  in  the  opposite  direction,  toward 
Stourbridge.     He  afterwards  called  at  two  public-houses 
at  Stourbridge,  at  the  first  of  them  about  six  o'clock, 
and  at  the  other  about  nine  the  same  evening ;  at  both 
of  which  the  attack  and  robbery  were  the  subjects  of 
conversation,  in  which  the  prisoner  joined ;  and  he  was 
distinctly  spoken  to  as  having  worn  a  fawn-skin  waist- 
coat.    On  the  21st  of  December  the  prisoner  sold  a 
watch  of  which  the  deceased  had  been  robbed,  at  War- 
wick, stating  it  to  be  a  family  watch.     But  the  most  con- 
clusive circumstance  was,  that  a  letter  was  sent  by  the 
prisoner,  while  in  jail,  to  his  wife,  who,  being  herself 
unable  to  read,  had  got  a  neighbor  to  read  it  to  her, 
which  contained  a  direction  to  remove  some  things  con- 
cealed in  a  rick  near  Stourbridge ;  where,  upon  search 
being  made,  were  discovered  a  glove,  containing  three 


804  WILLS    ON    CIRCUMSTVNTIAL    EVIDENCE. 

bullets,  and  a  screw-barrel  pistol,  the  fellow  to  that  found 
in  the  prisoner's  box.  A  gunmaker  deposed  that  the 
bullet  extracted  from  the  wound  had  been  discharged 
from  a  screw-barrel  pistol,  such  as  that  produced,  and 
that  that  bullet  and  the  bullet  found  in  the  prisoner's 
box  had  been  cast  in  the  same  mould. 

The  prisoner's  denial,  on  his  apprehension,  that  he 
had  ever  been  at  Stourbridge,  or  heard  of  the  act,  though 
he  had  been  seen  near  the  spot  about  the  time  when 
the  shot  was  fired,  denoted  a  consciousness  of  the  fatal 
effect  of  any  evidence  tending  to  establish  the  fact  of  his 
presence  there.  The  discovery  of  a  fawn-skin  waistcoat 
in  his  possession,  corresponding  with  that  worn  by  him 
when  seen  at  Stourbridge  on  the  evening  of  the  murder, 
his  possession  and  disposal  of  the  deceased's  watch 
within  three  days  after  he  had  delivered  it  to  his  mur- 
derer, his  false  statement  that  it  was  a  family  watch, 
the  correspondence  between  the  weapon  found  in  the 
rick  and  that  found  in  the  prisoner's  box,  and  between 
the  bullet  extracted  from  the  wound  and  that  found  in 
the  same  box,  and  the  peculiarity  that  the  deceased  had 
been  killed  by  a  wound  from  a  screw-barrel  pistol,  all 
these  circumstances  placed  the  guilt  of  the  prisoner  be- 
}ond  any  reasonable  doubt,  and  there  was  no  possibility 
of  referring  them  to  casual  and  accidental  coincidence, 
or  of  explaining  them  upon  any  hypothesis  compatible 
with  his  innocence.  He  was  convicted,  and  before  his 
execution  confessed  his  guilt.'' 

(4)  Three  men,  named  Smith,  Varnham,  and  Timms, 
were  tried  before  Mr.  Justice  Coltman,  at  the  Norfolk 
Spring  Assizes,  1837,  for  the  murder  of  Hannah  Mans- 
field, on  Tuesday  the  3d  of  January  preceding.     The 

•*  StaflFord  Spring  Ass.  1813,  coram  Mr.  Justice  Bayley. 


ILLUSTRATIONS   OF    ITS    FORCE.  305 

deceased,  who  was  about  forty  years  of  age,  lived  alone 
in  a  cottage  at  Denver,  on  the  border  of  a  common,  at 
a  distance  from  the  turnpike-road  leading  from  liilgay 
through  Denver  to  Downham,  and  remote  from  any 
other  house,  except  an  adjoining  cottage  under  the  same 
roof,  occupied  by  a  laborer  and  his  family.  The  de- 
ceased had  acquired  some  repute  as  a  fortune-teller,  for 
which  purpose  she  kept  by  her  some  money,  which  she 
called  her  bright  money ;  and  she  possessed  a  quantity 
of  plate,  consisting  of  cream-jugs,  table  and  tea-spoons, 
sugar-tongs,  salt-cellars,  and  a  silver  tankard,  which  she 
kept  in  a  corner  cupboard  and  had  frequently  boastfully 
displayed.  She  spent  the  evening  preceding  the  murder 
at  her  neighbor's  house,  which  she  left  about  half-past 
eleven ;  her  neighbor's  wife,  being  engaged  in  washing, 
did  not  go  to  bed  till  one  o'clock,  when  she  disturbed 
her  husband,  who,  as  he  lay  awake,  about  two  o'clock, 
heard  a  noise  in  the  deceased's  cottage,  but  hearing  noth- 
ing further,  went  to  sleep  again.  About  ten  o'clock  the 
following  morning  the  poor  woman  was  found  dead  in 
her  cottage,  with  her  throat  cut  from  ear  to  ear;  the 
cottage-door  had  been  split  open  by  some  violent  effort, 
and  the  cottage  had  been  robbed  of  her  money  and  treas- 
ure. The  footsteps  of  two  men  were  traced  from  the 
turnpike-road  towards  the  deceased's  house,  and  from 
the  house  into  the  stack-yard,  and  back  again  to  the  foot- 
path, and  across  the  common  to  a  run  of  water,  and 
thence  to  the  turnpike-road  :  one  of  the  footsteps  was 
very  large,  and  peculiarly  shaped  and  nailed,  there  being 
four  nailmarks  in  the  centre  of  the  heel,  in  a  line  from 
back  to  front,  and  two  on  each  side ;  and  there  were 
nailmarks  also  in  the  waist  of  the  heel,  between  the  sole 
and  the  heel,  and  the  sole  was  very  full  of  nailmarks. 

20 


306  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

The  prisoner  Timms's  shoes  exactly  corresponded  with 
these  marks ;  the  other  footstep  was  a  smaller  one,  and 
full  of  such  marks.  The  large  footmark  proceeding  from 
the  house  bad  marks  of  blood,  and  the  smaller  footste[> 
was  on  the  other  side  of  the  path,  and  the  centre  of  the 
path  was  so  bard  and  beaten  that  a  third  person  might 
have  walked  on  it  without  leaving  any  impression.  Only 
the  larger  footstep  was  traced  to  the  stack-yard,  but  both 
footsteps  were  traced  in  a  direction  toward  and  from  the 
house.  There  was  also  the  footstep  of  a  third  person, 
who  appeared  to  have  been  stationed  for  the  purpose  of 
watching  the  back  door  of  the  adjoining  cottage.  The 
three  prisoners  had  worked  in  the  neighborhood  as  ex- 
cavators, a  few  months  before  the  murder ;  and  about 
twelve  months  previously,  the  prisoner  Smith,  in  com- 
pany with  two  other  men,  had  called  at  the  adjoining 
cottage,  and.  asked  if  Hannah  Mansfield  was  at  home, 
supposing  that  to  be  her  cottage,  stating  that  he  had  lost 
some  tools,  about  which  he  wished  to  consult  her.  Thev 
had  been  loitering  at  various  low  public-houses  in  the 
neighborhood  of  the  deceased's  cottage  for  several  days 
preceding  the  murder,  and  left  one  of  those  public-houses, 
about  two  miles  from  her  residence,  where  they  had 
spent  the  evening,  about  eleven  o'clock  on  the  night  of 
the  murder.  Three  men,  corresponding  in  appearance 
with  the  prisoners,  one  of  whom  was  identified  as  the 
prisoner  Timms,  were  met  on  the  following  morning 
about  three  o'clock,  a  mile  from  the  deceased's  house, 
walking  very  fast  along  the  road  from  Denver  to  Down- 
ham  ;  and  about  half-past  eight  the  same  morning  the 
same  three  men  were  seen  at  Leverington,  fourteen  miles 
from  Denver,  apparently  fatigued,  and  the  pocket  of  one 
of  them  stuffed  with  something  bulky.     At  Sutton  St. 


ILLUSTRATIONS   OF   ITS    FORCE.  307 

Edmunds,  about  twenty  miles  from  Denver,  the  prison- 
ers stopped  at  a  public-house  to  refresh  themselves,  and 
one  of  them  paid  away  a  very  bright  and  unworn  six- 
pence and  shilling  of  the  year  1817.  After  having  staid 
some  hours,  they  proceeded  to  AVhaplode  Drove,  where 
they  remained  at  a  public-house  for  several  days,  and  fell 
into  company  with  a  shoemaker,  who  made  two  pairs  of 
boots  for  Varnham  and  Smith,  for  which  Timms  paid  in 
a  half-sovereign,  a  half-guinea,  and  a  sixpence.  Varnham 
cut  the  tops  from  his  old  boots,  and  the  landlord's  wife 
burned  the  soles,  and  threw  the  elates  upon  an  ash-heap, 
where  they  were  afterwards  found  by  a  police-officer, 
and  they  exactly  fitted  one  of  the  impressions  made  in 
the  snow  near  the  cottage.  While  sitting  by  the  fireside 
one  evening  at  this  public-house,  the  prisoner  Smith  laid 
hold  of  the  bottom  of  his  pocket,  which  seemed  heavy, 
and  a  bundle  contained  in  a  silk  handkerchief  dropped 
out,  from  which  some  teaspoons,  a  pair  of  sugar-tongs, 
and  some  glass  fell  on  the  floor ;  the  glass  was  broken, 
the  other  things  he  hastily  collected  and  replaced.  On 
the  following  day  the  prisoner  Timms  called  upon  the 
shoemaker,  who  had  been  present  on  the  previous  even- 
ing, professedly  to  talk  about  the  boots  which  he  had  to 
make,  and  took  occasion  to  remark,  that  "  he  need  not 
say  anything  about  what  he  had  seen,  as  it  might  get 
the  landlord  into  a  scrape,  though  for  themselves  they 
did  not  care  about  it,  as  they  had  got  the  things  from 
Lisbon."  On  the  Saturday  following  the  prisoners  were 
traced  to  Whittlesea,  where  they  offered  for  sale  to  a  gun- 
maker  a  mass  of  molten  silver,  upwards  of  two  pounds 
weight,  which  the  prisoner  Timms  said  had  consisted  of 
spoons,  salt-cellars,  and  elegant  things  fit  for  any  table, 
a  description  corresponding  with  the  deceased's  plate ; 


308  WILLS   ON   CIRCUMSTANTIAL   EVIDENCE. 

and  they  offered  to  purchase  a  pair  of  pistols.  The 
silver  was  cut  by  the  person  to  whom  it  was  offered  into 
six  or  seven  pieces,  and  offered  by  him  for  sale  to  another 
person;  but  not  having  succeeded  in  disposing  of  it,  they 
gave  his  wife  in  return  for  his  trouble  a  small  strip  of 
it,  weighing  about  an  ounce,  and  three  keys,  which  were 
afterwards  identified  as  having  belonged  to  the  deceased. 
The  prisoners  were  then  traced  to  and  apprehended  at 
Doncaster.  To  the  officers  they  gave  false  accounts  of 
themselves.  Stains  of  blood  were  found  upon  some 
parts  of  the  clothes  of  all  the  prisoners,  and  the  clothes 
of  two  of  them  appeared  to  have  been  washed  in  order 
to  remove  stains.  On  the  person  of  Smith  were  found 
several  pounds  in  money,  a  picklock  key,  lucifer  matches, 
and  a  knife  on  which  was  some  coagulated  blood ;  and 
on  the  person  of  Timms  was  found,  wrapped  up  in  a 
piece  of  linen,  a  mass  or  wedge  of  molten  silver.  With 
several  of  their  fellow-prisoners  Smith  and  Yarnham 
conversed  upon  the  subject  of  this  cruel  action  in  lan- 
guage of  disgusting  coarseness  and  brutality ; "  which 
implied  guilty  knowledge  of  and  participation  in  the 
crime,  since  they  expressed  confidence  of  security  if 
their  companions  remained  silent,  as  nobody  had  seen 
them  go  to  the  house. 

The  knowledge  which  the  prisoners  possessed  of  the 
locality  of  the  deceased's  cottage,  and  of  her  character 
and  circumstances,  their  presence  in  the  vicinity  at  so 
suspicious  an  hour,  in  the  inclement  season  of  mid- win- 
ter, so  close  upon  the  time  when  the  deceased  was  mur- 
dered, their  subsequent  wanderings,  apparently  without 
any  object,  their  profuse  expenditure  of  money,  their 
apparently  wanton  destruction  of  valuable  articles 
of  apparel,  unaccountable  except  on  the  supposition  that 


ILLUSTRATIONS   OF   ITS   FORCE.  309 

they  were  the  pregnant  evidences  of  guilt,  their  posses- 
sion of  so  much  money  and  molten  silver  when  appre- 
hended, the  correspondence  of  the  shoe-marks  about  the 
cottage  with  the  shoes  of  two  of  the  prisoners,  and  the 
possession  of  the  deceased's  keys,  the  concurrence  of 
these  otherwise  inexplicable  facts  could  not  be  rationally 
accounted  for  except  by  the  conclusion  of  the  guilt  of 
the  prisoners,  who  made  a  full  confession,  and  two  of 
whom,  Smith  and  Timms,  were  executed.* 

A  foreigner,  named  Courvoisier,  was  tried  at  the  Cen- 
tral Criminal  Court  (June,  1840)  for  the  murder  of  Lord 
William  Russell,  an  elderly  gentleman,  seventy-five 
years  of  age,  a  widower,  who  lived  in  Norfolk  Street, 
Park  Lane.  The  deceased's  family  consisted  of  the 
prisoner,  who  had  been  in  his  service  as  valet  about  five 
weeks,  and  of  a  housemaid  and  cook,  who  had  lived  with 
him  three  years,  beside  a  coachman  and  groom  who  did 
not  live  in  the  house.  On  the  6th  of  May  the  female 
servants  went  to  bed  as  usual,  and  the  housemaid  on 
going  to  bed  lighted  a  fire  and  set  a  rushlight  in  her 
master's  bedroom,  which  presented  its  usual  appear- 
ance ;  the  prisoner  remained  sitting  up  to  warm  his  bed. 
The  housemaid  rose  about  half-past  six  on  the  following 
morning,  and  on  going  down  stairs  knocked,  as  usual,  at 
the  prisoner's  door.  At  her  master's  door  she  noticed 
the  warming-pan,  which  was  usually  taken  down  stairs ; 
on  going  into  a  back  drawing-room  she  found  the  drawers 
of  her  master's  desk  open,  his  bunch  of  keys  lying  on 
the  carpet,. and  a  screw-driver  lay  on  a  chair.  In  the 
hall  his  lordship's  cloak  was  found  neatly  folded  up, 
together  with  a  bundle,  containing  a  variety  of  valuable 
articles,  most  of  them  portable,  such  as  a  thief  would 

*  Rex  V.  Smith,  Varnham,  and  Timms. 


310  .  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

ordinarily  put  in  his  pocket  instead  of  deliberately 
packing  up.  In  the  dining-room  she  found  several 
articles  of  plate  scattered  about.  The  street-door, 
though  shut,  was  unfastened,  but  the  testimony  of  the 
police,  who  passed  the  house  many  times  in  the  night, 
rendered  it  very  unlikely  that  any  person  had  left  it  in 
that  direction.  Alarmed  by  these  appearances,  the 
housemaid  called  the  prisoner,  and  found  him  dressed, 
though  only  a  few  moments  had  elapsed  since  she  had 
knocked  at  his  door,  which  was  a  much  shorter  time 
than  he  usually  took  to  dress.  They  went  together 
down  stairs ;  and  after  examining  the  state  of  the 
dining-room  and  the  prisoner's  pantry,  where  the  cup- 
board and  drawers  were  all  found  opened,  they  pro- 
ceeded to  their  master's  bedroom,  where  he  was  found 
with  his  throat  cut,  in  a  manner  which  must  have  pro- 
duced instant  death.  His  lordship  usually  placed  his 
watch  and  rings  on  his  dressing-table ;  but  they  had 
been  taken  away,  and  his  note-cases,  in  one  of  which 
the  prisoner  stated  that  he  had  seen  a  £10  and  a  £5 
note  a  few  days  before,  were  open  and  emptied  of  their 
contents.  A  book  was  found  on  the  floor,  and  his  lord- 
ship's spectacles  lay  upon  it,  and  there  was  a  candle- 
stick about  four  or  five  feet  from  the  bed,  with  a  candle 
burned  to  the  socket.  These  articles  appeared  to  have 
been  so  placed  to  create  the  impression  that  his  lord- 
ship had  been  murdered  while  reading ;  but  he  was  not 
accustomed  to  read  in  bed,  and  only  so  much  of  the 
rushlight  was  burned  as  would  have  been  consumed  in 
about  an  hour  and  a  half,  though  the  candle  was  com- 
pletely burned  away.  The  prisoner  stated  that  he  left 
his  master  reading.  Upon  the  door  of  the  prisoner's 
pantry,  leading  to  a  back  area,  were  marks  as  if  it  had 


ILLUSTRATIONS   OF    ITS    FORCE.  311 

been  hroken  into,  and  the  prisoner  suggested  that  the 
thieves  had  entered  by  that  d'oor ;  but  they  ap})eared 
to  have  been  made  from  within,  and  none  of  them  had 
been  made  by  the  application  of  sufficient  force  to  break 
open  the  door ;  the  bolts  appeared  not  to  have  been  shot 
at  the  time,  and  the  socket  of  one  of  them  had  been 
wrenched  off  when  the  door  was  open.  The  marks  on 
tliis  door  appeared  to  have  been  made  with  a  bent  poker 
found  in  the  pantry.  It  was  clear  that  no  person  had 
entered  the  premises  from  the  rear,  since  in  one  direc- 
tion they  could  have  been  approached  only  by  passing 
over  a  wall  covered  with  dust,  which  would  have  re- 
tained the  slightest  impression ;  and  on  the  other,  the 
party  must  have  passed  over  some  tiling  which  was  so 
old  and  perished  as  necessarily  to  have  been  damaged 
by  the  passing  of  any  person  over  it ;  while  from  the 
testimony  of  the  police  it  was  equally  clear  that  no 
person  had  escaped  through  the  front  door.  For  several 
days  the  missing  articles  could  not  be  found,  and  the 
case  appeared  to  be  wrapped  in  impenetrable  mystery; 
but  at  length,  upon  a  stricter  search,  his  lordship's  rings 
and  Waterloo  medal,  five  sovereigns,  and  a  <£10  note, 
the  latter  of  w^hich  had  been  removed  from  his  note- 
case, were  found  concealed  behind  the  skirting-board  in 
the  prisoner's  pantry;  and  beneath  the  leaden  covering 
of  a  sink  was  found  his  lordship's  watch,  and  several 
other  articles  were  also  found  in  other  parts  of  the  same 
room.  But  a  quantity  of  plate  which  had  been  stolen 
still  remained  undiscovered,  notwithstanding  the  most 
diligent  efforts  to  discover  it;  and  its  non-production 
was  the  only  circumstance  which  gave  any  apparent 
countenance  to  the  possibility  that  the  house  had  been 
robbed  on  the  night  of  the  murder,  by  parties  who  had 


312  WILLS   ON    CIRCUMSTANTIAL   EVIDENCE. 

escaped.  The  mystery  was  cleared  up,  however,  in  a 
very  extraordinary  manner,  during  the  progress  of  the 
trial.  About  a  fortnight  before  the  murder,  the  prisoner 
had  left  a  parcel  in  the  care  of  a  hotel-keeper  with  whom 
he  had  formerly  lived  as  waiter,  whose  curiosity  was 
excited  to  examine  its  contents  by  reading  in  a  news- 
paper a  suggestion  that,  as  the  prisoner  was  a  foreigner, 
he  had  probably  left  the  plate  at  one  of  the  foreign 
hotels  in  London.  The  parcel  was  found  to  contain  the 
missing  plate.  The  prisoner  had  been  known  in  this 
situation  only  by  his  Christian  name,  which  circumstance 
accounted  for  the  fact  that  suspicion  had  not  been  sooner 
excited  by  the  account  of  the  murder  and  robbery  which 
had  appeared  in  the  daily  journals.  This  discovery,  in 
conjunction  with  the  simulated  appearances  of  external 
violence  and  robbery,  and  the  conclusive  evidence  that 
the  premises  had  not  been  entered  from  without,  made 
it  certain  that  the  robbery  of  the  plate  and  the  murder 
had  been  committed  by  one  of  the  inmates ;  while  the 
manner  and  place  of  concealment,  and  the  artless  and 
satisfactory  account  given  by  the  female  servants,  ren- 
dered it  equally  clear  that  the  prisoner,  and  he  alone, 
could  have  been  the  perpetrator  of  this  cruel  action. 
He  made  a  confession  of  his  guilt,  and  was  executed 
pursuant  to  his  sentence.'' 

It  is  scarcely  possible,  in  the  absence  of  unimpeach- 
able direct  evidence,  to  conceive  of  any  grounds  of 
moral  assurance  and  judgment  more  satisfactory  and 
conclusive  than  those  afforded  by  such  combinations  of 
facts  as  were  presented  in  the  foregoing  cases. 

a  Sessions  Papers,  1840;  2  Townsend's  St.  Tr.  244. 


CONCLUSION.  dlo 

Section  4. 
conclusion. 

The  rules  of  evidence  are  the  practical  maxims  of 
legal  and  philosophic  sagacity  and  experience,  matured 
and  methodized  by  a  succession  of  wise  men,  as  the 
best  means  of  discriminating  truth  from  error,  and  of 
contracting  as  far  as  possible  the  dangerous  power  df 
judicial  discretion.  They  have  their  origin  in  man's 
nature,  as  an  intellectual  and  a  moral  being ;  and  "  are 
founded  "  (to  use  the  language  of  one  of  the  most  el- 
oquent of  advocates)  "  in  the  charities  of  religion,  in  the 
philosophy  of  nature,  in  the  truths  of  history,  and  in 
the  experience  of  common  life."  **  Such  rules  must  of 
necessity  be  substantially  the  same,  in  all  cases  and  in 
every  civilized  country ;  and  the  inviolable  observance 
of  them  is  indispensable  to  social  security  and  happi- 
ness. To  disregard  them,  under  whatever  circumstances 
or  pretext,  is  to  subject  to  the  sport  of  chance  those 
fundamental  rights  which  it  is  the  object  of  social  in- 
stitutions to  secure. 

The  design  of  this  Essay  has  been  to  investigate  the 
foundations  of  our  faith  in  circumstantial  evidence,  to 
ascertain  its  limits  and  its  just  moral  effect,  and  to  illus- 
trate and  confirm  the  reasonableness  of  the  practical 
rules  which  have  been  established  in  order  to  prevent 
the  unauthorized  assumption  of  facts,  and  to  secure  to 
relevant  facts  their  proper  weight.  It  has  been  main- 
tained that  circumstantial  evidence  is  inherently  of  a 
different  and  inferior  nature  from  direct  and  positive 

»  29  St.  Tr.  9GG. 


314  WILLS    ON    CIRCUMSTANTIAL    EVIDENCE. 

testimony ;  but  that  nevertheless  such  evidence,  al- 
though not  invariably  so,  is  most  frequently  superior  in 
proving  power  to  the  average  strength  of  direct  evi- 
dence ;  and  that,  under  the  safeguards  and  qualifications 
which  have  been  stated,  it  affords  a  secure  ground  for 
the  most  important  judgments  in  cases  where  direct 
evidence  is  not  to  be  obtained. 

It  must,  however,  be  conceded  that  "  with  the  wisest 
laws,  and  with  the  most  perfect  administration  of  them, 
the  innocent  may  sometimes  be  doomed  to  suffer  the 
fjite  of  the  guilty ;  for  it  were  vain  to  hope  that  from 
any  human  institution  all  error  can  be  excluded."  *  But 
certainty  has  not  always  been  attained  even  in  those 
sciences  which  admit  of  demonstration;  still  less  can 
unfailing  assurance  be  invariably  expected  in  investiga- 
tions of  moral  and  contingent  truth.  Nor  can  any  argu- 
ment against  the  validity  and  sufficiency  of  circumstan- 
tial evidence  as  a  means  of  arriving  at  moral  certainty 
be  drawn  from  the  consideration  that  it  has  occasionally 
led  to  erroneous  convictions,  which  does  not  equally 
apply  as  an  objection  against  the  validity  and  sufficiency 
of  moral  evidence  of  every  kind ;  and  it  is  believed  that 
a  far  greater  number  of  mistaken  sentences  have  taken 
place  in  consequence  of  false  and  mistaken  direct  and 
positive  testimony,  than  from  erroneous  inferences  drawn 
from  circumstantial  evidence.  "Admitting,"  said  Mr. 
Justice  Story,  ''  the  truth  of  such  cases,  are  we,  then, 
to  abandon  all  confidence  in  circumstantial  evidence, 
and  in  the  testimony  of  witnesses  ?  Are  we  to  declare 
that  no  human  testimony  to  circumstances  or  to  fjicts  is 
worthy  of  belief,  or  can  furnish  a  just  foundation  for  a 

"  Romilly's  Obs.  on  the  C.  L.  of  England,  7-4. 


CONCLUSION.  315 

conviction  ?     Thut  would  be  to  subvert  the  whole  foun- 
(lations  of  the  administration  of  public  justice."  * 

These  considerations  ought  not,  thei-efore,  to  produce 
an  unreasonable  and  indiscriminate  skepticism ;  the 
legitimate  consequence  of  such  reflections  should  be  to 
inspire  a  salutary  caution  in  the  reception  and  estimate 
of  circumstantial  evidence,  and  to  render  the  legislator 
especially  wary  how  he  authorizes,  and  the  magistrate 
liow  he  inflicts,  punishment  of  a  nature  which  admits 
neither  of  reversal  nor  mitigation.  Would  that  the  total 
abolition  of  such  punishment  were  compatible  with  the 
paramount  claims  of  social  security  !  It  is  indispens- 
able, however,  under  every  system,  to  the  very  exist- 
ence of  society,  that  the  tribunals  should  act  upon  cir- 
cumstantial evidence.  Infallibility  belongs  not  to  man ; 
and  even  his  strongest  degree  of  moral  assurance  must 
be  accompanied  by  the  possible  danger  of  mistake  ;  but 
after  just  effect  has  been  'given  to  sound  practical  rules 
of  evidence,  there  will  remain  no  other  source  of  un- 
certainty or  fiillacy,  than  that  general  liability  to  error 
which  is  necessarily  incidental  to  all  investigations 
founded  upon  moral  evidence,  and  from  which  no  con- 
clusion of  the  human  judgment  in  relation  to  questions 
of  contingent  truth,  whether  based  upon  direct  or  cir- 
cumstantial evidence,  can  be  absolutely  and  entirely 
exempt. 

a  Wharton's  C.  L.  of  the  U.  S.  3-i3. 


Note  to  Page  116. 

[I  am  indebted  to  M.  D.  Hill,  Esq.,  Q.  C,  the  learned  Re- 
corder of  Birmingham,  for  the  particulars  of  a  remarkable  case, 
in  which  he  was  retained  as  counsel  for  a  prisoner  accused  of 
shooting  at  a  young  woman,  and  in  which  the  intended  victim 
was  prepared  to  swear  that  she  recognized  the  prisoner  by  the 
flash  of  the  gun  which  was  fired  at  her.  The  trial,  which  was 
to  have  taken  place  at  the  Derby  Spring  Assizes,  1840,  was 
prevented  by  the  suicide  of  the  prisoner,  after  the  business  of 
the  Assizes  had  begun  ;  but  Mr.  Hill  was  present  at  a  series  of 
experiments  made  with  a  view  to  test  the  possibility  of  the 
alleged  recognition,  and  the  conclusion  he  drew  was  "  that  all 
stories  of  recognition  from  the  flash  of  gun  or  pistol  must  be 
founded  upon  a  fallacy."  There  were  many  circumstances  in 
the  case  calculated  to  produce  a  strong  impression  on  the  young 
woman's  mind  that  the  prisoner  was  her  assailant,  and  she 
doubtless  mistook  the  impression  so  created  for  ocular  demon- 
stration.— Ed.] 


INDEX. 


Abbott,  C.  J.,  on  evidence  derived 
from  flight,  80  ;  on  trial  by  jury, 
185  ;  on  facts  and  inferences,  203  ; 
on  charges  of  forgery,  237  ;  his 
charge  to  the  jury  in  a  case  of 
poisoning,  250. 

Ahinger,  Lord,  C.  B.,  on  the  proof 
of  the  corpus  delicti,  212. 

Accusation,  self,  24  ;  cases  of  false, 
151,  284. 

Accuser,  burden  of  proof  rests  with 
the,  183,  186. 

Actions,  the  subjects  of  human 
laws,  42  ;  classes  of,  43. 

Adultery,  proof  of,  275. 

Affirmative  evidence,  290. 

Agency,  doctrine  of,  94. 

Agreement  in  proof,  force  of  unde- 
signed, 283. 

Alderson,  B.,  on  legal  presumption, 
22 ;  on  circumstantial  evidence, 
•)5  ;  on  confessional  evidence,  75  ; 
on  the  rules  of  circumstantial 
evidence,  191. 

Alibi,  fabrication  of,  92,  169,  170; 
importance  of  time  in  cases  of, 
145,  167;  presumptions  in  cases 
of,  167,  168,  171  ;  importance  of 
minute  circumstances  in,  171  ;  re- 
markable case  of,  178. 

Anachronisms,  in  documentary  evi- 
dence, 144—146. 

Analogy  and  experience,  their  lim- 
its, 12;  analogical  reasoning,  12, 
14;  general  and  particular,  278. 

Analysis,  chemical,  231. 

Anno  Domini  water-mark  in  paper, 
31,  140. 

Appeal  of  death,  91  ;  abolished,  183. 

Aram,  Eugene,  the  case  of,  78. 

Arsenic,  Reinsch's  test  for,  100, 
232. 


Arson,  evidence  in  cases  of,  48. 
Assurance,  diflerent  kinds,  5. 
Aurora  Borealis,  its  first  recorded 
appearance  in  this  country,  29(.>. 
Austria,  penal  code  of,  277. 

B. 

Bacon,  Lord,  on  the  motives  to 
crime,  44. 

Bavaria,  law  of  circumstantial  evi- 
dence in,  27. 

Bayley,  J.,  on  rules  of  presumption, 
56,  202;  on  circumstantial  proof, 
174. 

Belief,  derived  from  the  results  of 
experience,  11  ;  nature  and  de- 
grees of,  5, 9, 15  ;  grounds  of,  273  ; 
arising  from  probabilities,  282. 

Bentham,  his  scale  of  belief,  9. 

Best,  J.,  on  proofs  of  the  corpus 
delicti,  201. 

Birth,  concealment  of,  23.  99,  269. 

Blood,  microscopical  examination 
of  stains  of,  104. 

Body,  discovery  of,  generally  the 
best  evidence  of  the  corpus  de- 
licti, 206  ;  not  indispensable,  207, 
209;  identification  of,  211,  213. 

Bolland,  B.,  on  identification  of  per- 
sons, 1 15. 

Bramwell,  B.,  on  evidence  of  iden- 
tity, 213. 

Brougham,  Lord,  on  the  force  of 
testimony,  7. 

Buller,  J.,  on  presumption  from 
circumstances,  30;  on  the  de- 
struction of  evidence,  85 ;  on 
charges  of  poisoning,  236,  246. 

Burke,  on  the  laws  of  property,  21; 
on  positive  presumptions,  28  ;  on 
circumstantial  evidence,  30,  38  ; 
on  presumptions  as  to  capacity 
for  crime,  149. 


318 


INDEX. 


Campbell,  Lord,  C.  J.,  on  motives, 
44 ;  on  rules  of  evidence,  51  ;  on 
criminal  intention,  219  •,  on  cir- 
cumstantial evidence,  2-^5 ;  on 
medical  and  moral  evidence,  237. 

Certainty,  moral,  5,  7,  274 ;  moral, 
incapable  of  mathematical  ex- 
pression, 8,  14. 

Certitude,  absolute,  5. 

Chances,  doctrine  of,  6,  8,  15. 

Character,  evidence  of,  165,  166 ; 
in  cases  of  rape,  151. 

Chemical  evidence,  importance  of, 
in  cases  of  poisoning,  231  ;  fails 
to  reach  the  cases  of  some  vege- 
table poisons,  232. 

Chemistry,  1:'31,  232. 

Circumstances,  presumptive  reason- 
ing on,  19  ;  evidentiary,  23  ;  class- 
ification of,  27  ;  of  suspicion  alone 
insufficient  to  convict,  66  ;  their 
connection  w^itli  the  factum  pro- 
bandum,  174;  inferences  from  evi- 
dentiary, "-04  ;  of  suspicion,  pre- 
sumptions from,  276  ;  concurrent 
evidence  of,  279 ;  discrepancy  in 
the  statement  of,  288. 

Circumstantial  evidence,  character- 
istics of,  16 ;  in  Bavaria,  27  ; 
value  of  direct  and  indirect  evi- 
dence, 28,  32,  149  ;  fallacies  relat- 
ing to,  29  ;  Burke  and  Paley  on, 
30,  38  ;  sources  and  classification 
o(^,  36,  38  ;  proper  subjects  of,  37  ; 
inculpatory,  moral,  39  ;  scientific, 
99  ;  mechanical  and  extrinsic,  112; 
identification  by,  113,  127  ;  excul- 
patory, 147:  rules  of,  173-198; 
corpus  delicti  proved  by,  200, 233  ; 
force  and  effect  of,  273,  278  ;  penal 
code  of  Austria  in  relation  to,  277; 
cumulative  force  of,  279  :  cases 
illustrating  the  force  of,  291. 

Civil  law,  strictures  on  maxims  as 
to  evidence,  200,  275. 

Clarendon,  Lord,  his  account  of  a 
case  of  confession,  71;  on  the 
effects  of  fright,  286  ;  instance  of 
historical  dishonesty  in,  289. 

Clocks,  comparison  of,  145,  169, 
181 ;  fraudulent  alteration  of,  169. 

Cockburn,  C.  J.,  on  scientific  evi- 
dence, 104 ;  on  inference  of  guilt, 
190;  on  inferential  evidence,  226. 


Coercion  by  husband,  a  ground 
of  acquittal  of  wife,  157. 

Coflin-plate,  secondary  evidence  of 
contents  of,  rejected,  187,  212. 

Coin,  possession  of  counterfeit,  49, 
51,  .52. 

Coincidences,  undesigned,  283. 

Coke,  Sir  Edward,  on  presumptive 
evidence,  154. 

Coleridge,  J.,  on  presumption  of 
guilt,^57. 

Coltman,  -J.,  on  the  duties  of  a  jury, 
153. 

Comparison  of  footmarks,  126,  160; 
of  handwriting,  133;  of  clocks, 
145  ;  of  shot,  163. 

Concealment,  presumption  from,  79, 
156,  268,  269  ;  of  birth,  presump- 
tion of  infanticide  from,  99,  269. 

Conduct,  and  motives,  41,  43,  44  ; 
moral,  as  evidence  of  the  corjjus 
delicti,  236,  237,  241. 

Confession,  compulsory,  24 ;  means 
of  its  extortion,  26,  70  ;  false,  70, 
71,  73,  75  ;  Lord  Ellenborough 
on  the  law  relating  to,  73  ;  on 
confessional  evidence,  68,  76  ;  Sir 
M.  Foster  on,  76, 

Consciousness  of  guilt,  indications 
of,  45. 

Consequences,  presumptive,  18. 

Conviction,  moral,  7. 

Convictions,  instances  of  erroneous, 
62,  66,  71,  77,  81,  113,  130,  155, 
177,  206,  207  ;  previous,  evidence 
of,  in  answer  to  evidence  of  good 
character,  166. 

Corpus  delicti,  confession  alone  in- 
sufiicient  proof  of,  69 ;  import- 
ance of  scientific  testimony  as  to, 
99;  proof  of.  111,  199;  circum- 
stantial evidence  as  to,  149,  200, 
214,  233;  applied  to  homicide, 
206-216;  discovery  of  body  the 
best  evidence  of,  206 ;  but  not 
indispensable,  207  ;  identification 
of  body,  211,  213;  hypothesis 
of  suicide,  accident,  or  natural 
death,  must  be  excluded,  214: 
proof  of,  in  cases  of  poisoning, 
216;  scientific  evidence  of,  231, 
233 ;  evidence  of  moral  conduct 
in  connection  with,  236,  238  ;  in 
cases  of  infanticide,  268. 

Credibility,  10;  of  testimony,  273  ; 
omissions  not  fatal  to,  290. 


INDEX. 


319 


Criminality,  never  to  be  presumed, 
183  ;  involves  proof  of  corpus  de- 
licti, -intt. 

Crime,  definition  of,  37 ;  motives 
to,  39,41,44;  preparations  and 
opportunity  for  committinj;,  52, 
53  ;  possession  of  the  fruits  of, 
53,  57  ;  absence  of  inducement 
to,  156  ;  maa;nitude  of,  should 
not  affect  the  (juestion  of  proof, 
195. 

D. 

Dallas,  C.  J.,  on  degrees  of  proof 
and  ina,^nitude  of  crime,  195. 

Dates,  verification  of,  140. 

Death,  concealment  of,  88;  appeal 
of,  91,  183  :  presumption  of,  208  ; 
cause  of,  must  be  established  in 
cases  of  murder,  214;  from  poi- 
son, 217,  234;  punishment  of, 
for  infanticide,  271. 

Declarations,  45,  46,  47. 

Delay,  effect  of,  on  value  of  evi- 
dence, 188. 

Demonstration,  defined,  3 ;  evidence 
of,  5. 

Depositions  allowed  to  accused  per- 
sons, 285. 

Destruction  of  evidence,  82. 

Direct  evidence,  superior  to  circum- 
stantial, 203. 

Discrepancy,  in  narration  of  his- 
torical events,  288. 

Disijuise,  presumption  from,  79  ;  of 
haudwritinf;,  difficulty  of,  139. 

Documents,  internal  evidence  of 
genuineness,  141. 


E. 

Ecclesiastical  courts,  rule  of  evi- 
dence in,  275. 

Eldon,  Lord,  on  unexplained  causes 
of  suspicion,  284. 

Ellenborouiih,  Lord,  C.  J.,  on  the 
rule  of  law  relating  to  confession, 
73  ;  on  the  onus  probandi,  184. 

Embezzlement,  51. 

Emotion,  influence  of,  on  testimony, 
286. 

Erie,  J.,  on  indications  of  guilt,  48. 

Erroneous  convictions,  62,  66,  71, 
77,  81,  113,  130,  155,  177,  206, 
207. 


Erskine,  Lord,  on  presumption  and 

proof,  34. 
Evidence,  defined,  1  ;  distinguished 
from  proof,  2 ;  various  kinds  of, 
ib.  ;  intuitive,  3 ;  moral,  4,  5  : 
evidence  incapable  of  a  mathe- 
matical test,  10;  constructive, 
13;  circumstantial,  characteris- 
tics and  sources  of,  16,  36  ;  direct 
and  indirect,  17,  28,  149;  pre- 
sumptive, 18  ;  in  Bavaria,  27,  32  : 
classification  of,  38;  inculpatory 
moral,  39;  indirect  confessional, 
68  ;  jury  the  sole  judges  of  con- 
fessional, 74;  suppression,  df- 
struction,  fabrication  and  simu- 
lation of,  82,  87,  88,  90,  92,  152. 
176,  187;  scientific,  99,  l02,  110; 
of  skilled  witnesses,  103  ;  extrin- 
sic inculpatory,  112;  forgery  de- 
tected by  internal,  141  ;  forged 
documentar3\  142 ;  exculpatory. 
147  ;  secondary,  when  admissible, 
187;  rules  of  circumstantial,  191, 
204  ;  fallacies  as  to.  192,  195,  231  : 
rules  of,  but  should  be  uniform, 
196;  rules  of,  in  civil  and  crim- 
inal cases,  196,  201  ;  presump- 
tive, 202 ;  direct,  superior  to 
circumstantial,  203  ;  inferential, 
226-231  ;  medical  and  moral. 
235,  237  :  motives  to  withhold. 
240;  cumulative  forcie  of,  241: 
moral,  273 ;  rules  of  civil  law 
applicable  to,  275  ;  force  of  con- 
current, 278-280 ;  from  unde- 
signed agreement,  283  ;  affirma- 
ative  and  negative,  290. 

Excreta,  examination  of,  in  cases 
of  poisoning,  232,  236,  238,  248. 
251. 

Exculpatory  presumptions,  147. 

Experience,  meaning  and  province 
of,  11. 

Experts,  evidence  of,  to  handwrit- 
ing, 133. 

Extrinsic  indications  of  guilt,  112. 

Eyre,  C.  J.,  on  declarations  indica- 
tive of  guilt.  46. 


F. 


Fabrication  of  evidence,  152;  of 
circumstances,  163  ;  of  alibi,  168, 
170  ;  of  facts,  checked  by  concur- 
rence of  evidence,  282. 


320 


INDEX. 


Facts,  principal  and  secondary,  27  ; 
iirranj^ement  of  evidentiary,  38  ; 
simulation  of,  <S9  ;  fabrication  of, 
170;  the  basis  of  lejial  inference, 
173  ;  relation  of  circumstances  to 
the  factum  probanditm,  174  :  dis- 
crepancy in  the  evidence  of  his- 
torical, 288. 

Fallacies  as  to  evidence,  192,  195, 
231. 

False  charges,  motives  to  prefer, 
151-153.' 

Falsehood,  indicative  of  guilt,  67; 
in  accusation,  151  ;  not  neces- 
sarily implied  by  variations  in 
testimony,  287. 

Family  likeness,  inferences  of  iden- 
tity from,  117. 

Fear,  presumptions  from  indica- 
tions of,  79;  effects  of,  on  testi- 
mony, 286. 

Fliffht,  79,  80;  presumptions  from, 
159. 

Footmarks,  proof  from,  65  ;  com- 
parison of,  126  ;  identification  by, 
291,  305. 

Force  of  circumstantial  evidence, 
273,  278;  cases  illustrating,  291. 

Forgery,  evidence  in  cases  of,  49  ; 
proof  of  handwriting,  136,  139; 
detected  by  internal  evidence, 
141  ;  by  anachronisms,  142. 

Foster,  Sir  M.,  on  confessional  evi- 
dence, 76  ;  on  the  evidence  of  an 
alibi,  167. 


G. 


Genuineness  of  documents,  evidence 
of,  141. 

(Jeorge,  B.,  on  evidence  of  alibi, 
171. 

Glass,  magnifying,  used  in  matters 
of  handwriting,  119,  137. 

<'rnvernment  stores,  possession  of, 
95. 

Guilt,  legal  presumptions  of,  23,  28 ; 
motives  to,  41,  44;  indications  of 
a  consciousness  of,  45 ;  prima, 
facie  presumptions  of,  52 ;  pos- 
session of  stolen  goods  proof  of, 
64,  96-98,  160  :  false  statements 
indicative  of,  67 ;  confessional 
evidence  of,  70 ;  indicated  by 
mental  emotion,  79;  statutory 
presumptions   of,  93;   presump- 


tions exculpatory  of,  147;  ab- 
sence of  apparent  motives  to, 
156:  presumptions  of  guilt  ex- 
plained, 161  ;  inferences  of,  185, 
188,  190. 

Guilty  intentions,  declarations  of. 
45. 

Gurney,  B.,  on  legal  presumption, 

56  ;  on  presumption  from  posses- 
sion of  stolen  goods,  161  ;  charge 
to  the  jury  in  a  case  of  poisoning, 
255. 

H. 

Hale,  Sir  M.,  on  presumptive  guilt, 
62,  150  ;  on  inference  from  prob- 
abilities, 193;  on  proof  of  mur- 
der, 297. 

Hampden,  Dr.,  on  analogical  rea- 
soning, 13. 

Handwriting,  proof  of,  132;  com- 
parison of,  133;  evidence  of  ex- 
perts, 134;  presumptions  from 
painting  or  touching,  137;  diffi- 
culties of  disguising,  139;  evi- 
dence of,  177. 

High  treason,  evidence  in  cases  of, 
275. 

Historical  events,  discrepancy  in 
narrating,  288. 

Holroyd,  J.,  on  presumptive  evi- 
dence, 202. 

Homicide,  doctrine  oi corpus  delicti 
applied  to,  206. 

Housebreaking,  possession  of  im- 
plements of,  52. 

Human  remains,  presumption  from 
destruction  of,  88  ;  identification 
by  circumstantial  evidence,  213. 

Humphreys,  Alexander,  his  claim 
to  the  earldom  of  Stirling,  142. 

Husband  and  wife,  possession  of 
the  fruits  of  crime,  in  relation  to, 

57  ;  presumption  in  cases  of,  157. 
Hydrostatic  test,  fallacy  of,  267. 


I. 


Identity,  of  things,  how  proved,  63  ; 
presumptions  from  obliteration  of 
marks  of,  87  ;  of  person,  cases  of 
mistaken,  33,  113,  115,  210;  of 
property,  cases  of  mistaken,  128, 
129,  130,  131,  205. 


INDEX. 


Identification,  quantity  of  li.uht  nec- 
essary to,  115;  of  person,  l)y  flash 
of  a  pistol,  116;  by  family  like- 
ness, 1 17  ;  use  of  photoi^rapliy  in, 
118;  by  dress,  119;  by  corres- 
pondence of  articles,  119.  127, 
177,  312;  by  wounds,  119";  of 
property  and  human  remains, 
127,  312;  of  footmarks  and  im- 
pressions, 122-126,  291,  305;  of 
body,  in  cases  of  murder,  127, 
211-214. 

Illegitimate  child,  evidence  of  the 
murder  of,  99. 

Inculpatory  circumstantial  evi- 
dence, 39. 

Indications,  moral  inculpatory,  39; 
extrinsic  and  mechanical,  112. 

Indigence,  sudden  transition  from, 
suspicious,  62. 

Induction,  rules  of,  173. 

Infanticide,  presumptions  of,  23,  99, 
156,  157;  proof  of  cojyus  delicti 
in  cases  of,  266-272 ;  dilEculty  of 
proving,  266  ;  proof  of  child  being 
born  alive,  267  ;  fair  presumption 
often  of  a  less  offence,  270 ;  pre- 
sumptions from  want  of  assist- 
ance at  birth,  270 ;  punishment 
of  death  for,  271. 

Infants,  presumptions  as  to  their 
capacity  for  crime,  147. 

Inference,  13;  presumptive,  18;  of 
guilt,  how  restricted,  189  ;  of 
death,  208 ;  force  of  inferential 
proof,  226-231. 

Innocence,  prima  facie  presump- 
tions in  favor  of,  148,  158,  183  ; 
presumptions  reconcilable  with, 
161  ;  conditions  involved  in  hy- 
pothesis of,  190. 

Insanity,  mode  of  examination  in 
questions  of,  101. 

Inspectors  of  handwriting,  134. 

Intent,  special,  44,  156,  157,  158. 

Intestines,  examination  of,  in  cases 
of  poisoning,  232,  236  ;  attempts 
to  prevent  examinations  of,  238, 
246,251. 

Intuition,  3. 

J. 

Jekyll,    Sir  J.,   on   suppression    of 

evidence,  84. 
Judgment,  defined,  1  ;  intuitive,  3  ; 

inferential,  17. 
21 


Juris  pra'sumpiio7ies,   20;     litiikc 

on,  21. 
Juris  et  de  jure,  presumptions,  20, 

147. 

K. 

Kenyon,  Lord,  C.  J.,  on  possession 

of  stolen  goods,  97. 
Knowledge,  guilty,  45, 


Left-handedness,  118,  296. 

Legge,  B.,  on  legal  presumption,  30. 

Lens,  magnifying,  used  in  matters 
of  handwriting,  119,  137. 

Libel,  presumption  as  to  publica- 
tion of,  94. 

Light,  mistakes  in  evidence  from 
insufficient,  116,  316. 

Likeness,  family,  117. 

Littledale,  J.,  on  confessional  evi- 
dence, 74. 

Logic,  the  science  of,  173. 


M. 


Macaulay,  Lord,  on  the  rules  of 
evidence,  197. 

Macdonald,  C.  B.,  on  circumstan- 
tial proof,  32;  on  measuring  time, 
145  ;  on  the  rules  of  circumstan- 
tial evidence,  190. 

Magnifying-glass,  used  in  matters 
of  handwriting,  119,  137. 

Mala  Jama,  presumption  from,  165. 

Mansfield,  Lord,  on  evidence  from 
family  likeness,  117. 

Mathematical  probability,  6,  8. 

Maule,  J.,  on  legal  presumption, 
56  ;  on  rules  of  proof,  205. 

Meadowbank,  Lord,  on  hypothesis 
of  innocence,  191  ;  on  the  rule  of 
proof,  206. 

Mechanical  indications  of  guilt,  1 12. 

Medical  evidence,  100. 

Microscope,  use  of,  to  identify  stains 
of  blood,  104  ;  for  other  purposes, 
119,  137. 

]Mind,  effects  of  evidence  on  the,  14 ; 
its  preference  of  truth  to  false- 
hood, 35:  operations  of  the,  41  ; 
evidence  in  cases  of  poisoning 
from  the  state  of,  236. 


:^22 


INDEX. 


Mitterraaler,  on  circumstantial  evi- 
dence, 20;). 

Moral  evidence,  4,  10,  235,  273-, 
moral  certainty,  5,  8,  14,  274; 
moral  probability,  7  ;  inculpatory 
moral  indications,  31) ;  moral  con- 
viction, and  direct  proof,  20('), 
214 ;  evidence  of  moral  conduct  in 
cases  of  poisoninpf,  235  ;  grounds 
of  belief  in,  273. 

Motive,  to  crime,  39  ;  meaning  of 
the  term,  40;  adequacy  of,  41, 
44;  apparent  absence  of,  not  con- 
clusive, 43  ;  special,  how  far  nec- 
essary to  an  offence,  44  ;  of  pros- 
ecutor, immaterial.  153  ;  absence 
of,  158;  to  crime,  220;  to  with- 
hold evidence,  240. 

Murder,  identification  in  cases  of, 
122-127,  129;  of  child,  157;  by 
poisoning,  216-265. 


N. 


Natural  presumptions,  20. 
Negative  evidence,  290. 
Nicholl,  Sir  J.,  on  evidence,  137. 


0. 


Omissions,  effect  of,  on  testimony, 

290. 
Omnia prcesumnntur  contra  spolia- 

torenij  82. 
Onus  probandi,  183,  et  sgq. 
Opportunity  of  committing  crime, 

53. 
Ordeal,  by  touch,  36. 


Panic,  effects  of,  286. 

Paley,  on  fallacies  in  circumstan- 
tial evidence,  30 ;  strictures  on, 
194  ;  on  evidence  from  unde- 
signed coincidences,  283  ;  on  cir- 
cumstantial variety  in  evidence, 
288. 

Paper,  quality  of,  a  means  of  de- 
tecting fraud,  141,  143  ;  water- 
mark in,  31,  140. 

Parentage,  inferred  from  likeness, 
117. 

Parke,  B.,  on  evidence  in  a  case  of 


poisoning,  49 ;  on  infei'ence  of 
guilt  from  falsehood,  67  ;  on  pre- 
sumptions of  guilt,  166;  on  cir- 
cumstantial evidence,  203  ;  on 
cases  of  poisoning,  234. 

Patteson,  J,,  on  scientific  evidence, 
101,  110. 

Perjury,  proof  of,  275. 

Person,  identification  of,  113;  by 
articles  of  property,  312. 

Photography,  employed  in  identifi- 
cation, 118. 

Playfair,  on  probabilities,  282. 

Plurality  of  offences,  when  evidence 
of  may  be  given,  47. 

Poison,  possession  of,  52,  219;  op- 
portunity of  administering,  ib. ; 
chemical  evidence  respecting, 
231;  tests  for,  232;  difficulty  of 
detecting  vegetable,  232. 

Poisoning,  evidence  of,  49  ;  proof 
of  the  corpus  delicti  in  cases  of, 
216  ;  post-mortem  appearances  in 
cases  of,  217  ;  by  strychnine,  218, 
264;  possession  of  poison,  219; 
opportunity  of  administering  poi- 
son, ib.;  motives  to,  220;  infer- 
ential evidence  of,  226 ;  aid  of 
chemical  analysis  in  cases  of, 
231  ;  examination  of  intestines  in 
cases  of,  232,  236,  238,  246,  251  ; 
kind  of  proof  required,  233  ;  evi- 
dence of  moral  conduct  in  charges 
of,  235  ;  importance  of  moral  con- 
duct in  cases  of,  235  ;  remarkable 
cases  of,  241-265. 

Pollock,  C.  B.,  on  the  necessary 
certainty  of  guilt,  194. 

Possession,  of  government  stores, 
22,  95  ;  of  the  fruits  of  crime,  53  ; 
importance  of  lapse  of  time  in 
regard  to,  55  ;  must  be  exclusive, 
57  ;  not  always  referable  to  theft, 
60  ;  of  stolen  goods,  indicative  of 
guilt,  61,  64,  131,  160;  sometimes 
fallacious,  62  ;  not  in  itself  proof 
of  guilt,  96-99  ;  of  poisons,  unex- 
plained, 219,  228. 

Post-mortem  examinations,  pre- 
sumption from  attempt  to  pre- 
vent, 88,  238,  246,  251  ;  appear- 
ances, importance  of,  in  cases  of 
poisoning,  217. 

Post-office  marks,  in  evidence,  145. 

Pra;sumptio  judicatur  jyotentior 
quiK  est  benignior,  157. 


INDEX. 


323 


Pr(Psumptiones  juris,  20 ;  juris  et 
dejiire^  20,  147  ;  hominis,  22. 

Pratt,  C.  J.,  on  the  suppression  of 
evidence,  83. 

Pregnancy,  evidence  of,  266. 

Prejudice,  difficulty  of  avoiding, 
151. 

Presumption,  defined,  IS;  natural 
and  legal,  20:  prcesiimptiones  ju- 
ris, 20  ;  /'itris  et  de  jure,  ib. ; 
hominis,  22  ;  arbitrary,  23  ;  rules 
for  estimating  the  force  of,  24,  2") ; 
futility  of  attempts  to  classify,  27  ; 
inefficacy  of  positive,  28  ;  statut- 
able, 23,  28,  52,  93,  99,  156,  157  ; 
in  cases  of  husband  and  wife,  157  ; 
in  favor  of  least  guilty  motive, 157. 

Presumptive  evidence,  18. 

Probability  defined,  6  ;  moral,  7  ; 
balance  of  probabilities,  10  ; 
judgments  formed  on,  193. 

Pi'oof,  often  confounded  with  evi- 
dence, 2  ;  constructive,  13  ;  semi- 
plena  probatio,  24  ;  onus  proban- 
di,  54,  184;  fallacies  as  to,  195; 
of  corpus  delicti,  199  et  sqq.; 
fo7-mulce  of,  contained  in  many 
Continental  codes,  274. 

Property,  laws  of,  20 ;  identifica- 
tion of,  127,  130,  312;  possession 
of  stolen,  160. 

Pym,  death  of,  289. 


R. 

Rape,  presumption  as  to  capacity 
to  commit,  149 ;  evidence  as  to 
character  in  cases  of,  151  ;  pre- 
sumption from  demeanor,  ib. 

Reasoning,  the  groundwork  of,  11  ; 
by  analogy,  12,  14  ;  presumptive, 
18. 

Receivers  of  stolen  property,  60. 

Reid.  Dr.,  on  cumulative  proof,  279. 

Reinsch's  test  sometimes  fallacious, 
100. 

Responsibility,  grounds  of  moral 
and  legal,  40,  43,  44. 

Rewards,  as  motives  to  prefer  false 
charges,  153. 

Rolfe,  B.,  on  proof  of  administering 
poison,  219. 

Roman  Law,  maxims  of,  as  to  evi- 
dence, 24. 


Rules  of  circumstantial  evidence, 
173. — (See  Circumstantial  Evi- 
dence.) 


Scientific  evidence,  99,  104  ;  of  the 
corpus  delicti,  231. 

Secondary  evidence,  when  admis- 
sible, 187  ;  of  contents  of  coffin- 
plate  rejected,  187,  212. 

Self-inflicted  wounds,  90. 

Senses,  testimony  of  the,  33. 

Sheep,  identification  of,  118. 

Shot,  comparison  of,  90,  163. 

Simulated  appearances,  118,  119, 
126. 

Simulation  of  facts,  89,  164,  170  ; 
simulated  appearances,  118,  119, 
126. 

Special  intent,  44. 

Stains  of  blood,  microscopical  ex- 
amination of,  104. 

Statutory  presumptions,  23,  87,  93, 
99,  157. 

Stirling,  claim  to  the  earldom  of, 
142. 

Stolen  goods,  receiving,  60 ;  pos- 
session of,  95-99,  152. 

Stores,  Government,  possession  of, 
22,  95. 

Story,  J.,  on  proof  of  the  corpus 
delicti  in  murder,  208. 

Strychnine,  poisoning  by,  218. 

Substantive  offence,  evidence  of,  ad- 
missible to  show  intent,  47. 

Suicide,  90,  214  ;  hypothesis  of, 
must  be  excluded  in  proof  of 
corpus  delicti,  214. 

Suppression  of  evidence,  82 ;  pre- 
sumption from,  187. 

Suppressio  veri,  290. 

Suspicion,  punishment  on  mere,  26  ; 
circumstances  of,  52  ;  unexplained 
appearances  of,  65,  184;  from 
concealment  of  death,  88  ;  from 
possession  of  stolen  goods,  96-99  ; 
explanation  of  circumstances  of, 
1 54  ;  fabricated  circumstances  of, 
164. 


T. 


Testimony,  nature  of,  4  ;   strength 
of,  7;    constructive,    13;    direct 


324 


INDEX. 


and  indirect,  17  ;  weight  of,  25 
of  the  senses,  33  ;    scientific,  99 
errors  incidental  to  human,  148 
assumed  credibility  of,  in  all  in- 
vestigations of  principles  of  evi- 
dence, 273  ;  concurrence  of  inde- 
pendent sources  of,  278  ;  influence 
of  confusion,  emotion,  and  fear 
on,  286  ;  variations  in,  not  neces- 
sarily'  indicative    of    falsehood, 
287  ;  omissions  not  fatal  to  credi- 
bility of,  290. 

Testis  mius,  testis  nullus,  25. 

Test,  Reinsch's,  100  ;  chemical  tests, 
232. 

Threats,  47. 

Time,  verification  of,  140,  145;  dif- 
ficulty of  measuring,  145 ;  im- 
portance of,  in  cases  of  alibi,  167 ; 
lapse  of,  188. 

Tindal,  C.  J.,  on  the  concealment 
of  death,  88  ;  on  positive  evidence, 
186. 

Torture,  confession  under,  70. 

Touch,  ordeal  by,  36. 

Truth,  objective  and  subjective,  1 ; 
abstract,  2  ;  conditions  of  inquiry 
into,  37. 


Uniformity   of  rules   of    evidence, 
195,  231. 


V. 

Vegetable  poisons,  difficulty  of  de- 
tecting, 232. 
Verification  of  dates  and  time,  140. 
Voice,  identification  by,  116,  118. 


W. 

Water-mark,  in  paper,  used  as  evi- 
dence, 31,  140,  177. 

AVealth,  sudden  acquisition  of,  62. 

Wife — see  Husband  and  Wife. 

Wightman,  J.,  on  grounds  of  pre- 
sumption, 56. 

Witchcraft,  36. 

Witnesses,  skilled,  103  -,  cases  in 
which  more  than  one  is  required, 
275. 

Wounds,  self-inflicted,  90;  instances 
of,  without  the  dress  being  cut, 
106. 

Writing,  in  proof  of,  132,  177. 


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